Citation Nr: 1327733 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 08-37 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for chronic lymphocytic leukemia (CLL), to include as due to herbicide exposure. 2. Entitlement to service connection for chronic bronchitis and pulmonary difficulties, secondary to CLL. 3. Entitlement to service connection for pancytopenia, secondary to CLL. 4. Entitlement to service connection for osteophyte formations of the spine, secondary to CLL. 5. Entitlement to service connection for peripheral neuropathy of both upper extremities, secondary to CLL. 6. Entitlement to a total disability rating based upon unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1967 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (Court) on February 27, 2013, which partially vacated an October 2011 Board decision as to the issues addressed in this decision and remanded the matter for additional development. The issues initially arose from a November 2007 RO decision. The Veteran presented sworn testimony during a hearing before a RO Decision Review Officer in November 2009. A transcript of this hearing is of record and has been reviewed. He had additionally requested a hearing before a Veterans Law Judge; however, in a December 2010 statement, he explained that he would not be able to attend such a hearing, because his CLL had recurred and he was undergoing chemotherapy. His request is thus considered to have been withdrawn. 38 C.F.R. § 20.704(e) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. CLL was not incurred during the Veteran's period of service, and was not manifest within one year of service, or for many years following service. 2. CLL is not shown to have been caused or aggravated by exposure to herbicides during the Veteran's service in Vietnam; no other relationship to service is demonstrated 3. As service connection must be denied for CLL, and as no other relationship to service is suggested or shown by the evidence, all disabilities claimed to have been proximately caused by CLL and/or medical treatment for CLL, to include chronic bronchitis, pulmonary difficulties, pancytopenia, osteophyte formations of the spine, and peripheral neuropathy of both upper extremities are not related to service either. 4. The Veteran is not precluded from securing and following a substantially gainful occupation by reason of his service-connected tinnitus. CONCLUSIONS OF LAW 1. Service connection for CLL is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). 2. Service connection for chronic bronchitis, pulmonary difficulties, pancytopenia, osteophyte formations of the spine, and peripheral neuropathy of both upper extremities is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 3. VA compensation benefits predicated upon unemployability due to service-connected disabilities are not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking service connection for CLL based on exposure to Agent Orange and other similar herbicides while he was serving in Guam. He asserts that chronic bronchitis and pulmonary difficulties, pancytopenia, osteophyte formations of the spine, and peripheral neuropathy of both upper extremities are all secondary to his CLL. Lastly, he asserts that he is rendered unemployable by CLL and the complications of that disease, and requests VA unemployability compensation. I. Duty to Notify and Assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must inform the claimant of: (1) the information and evidence not of record necessary to substantiate the claim; (2) the information and evidence that VA will seek to provide; and (3) the information and evidence the claimant is expected to provide. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The Veteran was provided with this information in a letter dated March 2007, prior to the initial adjudication of the claims. The Veteran's service treatment records and private medical records have been obtained, including medical opinions provided by his treating physicians. He has been provided with a VA medical examination pertinent to the appeal. He and his representative have presented written argument in support of the claims and presented testimony at a hearing before a Decision Review Officer at the RO. The RO undertook all appropriate action to obtain verification of the Veteran's exposure to herbicides in Vietnam, including requesting historical research specific to the Veteran from the Department of the Army's Center for Unit Records Research and consulting official information from the Department of Defense on the locations were herbicides were used, tested, and stored. Therefore, the Board is satisfied that all relevant and obtainable evidence pertaining to the issue decided herein has been obtained. Thus, the Board concludes that VA has satisfied its duties to notify and assist. There is no indication that any prejudice to the Veteran has resulted from the timing or substance of the notice or assistance with evidentiary development provided in this case. See Shinseki v. Sanders, 556 U.S. 396, 410 (2009). As any additional development efforts would serve no useful purpose and there is no indication that prejudice to the Veteran will result from adjudicating this appeal, the Board will proceed with the adjudication of the issues on the merits. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). II. Reasons and Bases Requirement In adjudicating this claim, the Board has carefully reviewed the record and the Veteran's contentions and has provided a thorough discussion of the findings and conclusions, and the reasons and bases for those findings and conclusions, on all material issues of fact and law presented on the record. 38 U.S.C.A. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990). This discussion contains a detailed analysis of the credibility and probative value of the evidence that accounts for the evidence determined to be persuasive or unpersuasive, and provides clearly stated reasons for the rejection of evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gilbert, 1 Vet. App. at 57. Specifically, the Board has explained the reasons and bases for the finding that the Veteran is not competent to relate that the label on the drum depicted in the photographic evidence submitted in support of his claim shows that the drum contained especially toxic herbicides, including Agent Orange. Therefore, the Board has complied with the instructions in the Court's February 2013 Memorandum Decision. Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). III. Standard of Review When evaluating a claim for disability benefits, VA must give due consideration to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When analyzing lay evidence, the Board will determine whether lay evidence is competent on the issue for which it is submitted. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). Lay evidence is competent when provided by a person who has personal knowledge, actually observed, derived from the senses of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465, 470 (1994). A lay witness may be competent to testify to the occurrence of an incident in service where the issue is factual in nature, and the person has knowledge of the facts or circumstances and conveys matters that can be observed and described by a layperson. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); 38 C.F.R. § 3.159(a)(2). Therefore, lay evidence is competent only where specialized education, training, or experience is not a required for knowledge of the information concerned. 38 C.F.R. § 3.159(a)(2). Once evidence is determined to be competent, the Board must determine whether the evidence is credible. Gardin v. Shinseki, 613 F.3d 1374, 1379-1380 (Fed. Cir. 2010). Credible evidence is that which is plausible or capable of being believed. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board may properly consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran in determining whether lay statements are credible. Id; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."). Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert, 1 Vet. App. at 53, the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail on the claim. To deny a claim on its merits, the preponderance of the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. IV. Analysis Service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be presumed for certain chronic diseases, including leukemia, that are manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101 , 1112; 38 C.F.R. §§ 3.307 , 3.309(a). Generally, to establish a entitlement to disability compensation on a direct basis, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The regulations governing claims for disability compensation premised on exposure to certain herbicides in service, including Agent Orange, provide that Veterans who served on active duty in Vietnam during the Vietnam era are presumed to have been exposed to Agent Orange or similar herbicides. 38 C.F.R. § 3.307. This legal presumption establishing exposure to herbicides is expressly limited to Veterans who served in Vietnam. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). These regulations also stipulate the diseases, including some types of cancer, for which service connection may be presumed due to an association with exposure to herbicide agents where such exposure is shown, and CLL is one of these specified cancers. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Evidence which may be considered in rebuttal of service incurrence of a § 3.309 disease includes any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. 38 C.F.R. § 3.307(d). Here, the Veteran's service treatment records are entirely negative for CLL, any other pre-cancerous condition, or any of the disabilities which are claimed to be related to CLL. Rather, the medical evidence shows that the Veteran's CLL was initially diagnosed in 2004, more than thirty years after his discharge from active service. Therefore, CLL did not initially manifest within service or within one year of the Veteran's discharge from service and service connection is not warranted on that basis. See 38 C.F.R. §§ 3.303(a); 3.307 , 3.309(a). With regard to the presumptions concerning exposure to herbicides under 38 C.F.R. §§ 3.307 and 3.309, the Veteran does not contend that he had active service in Vietnam and there is no evidence showing active service in Vietnam. Rather, he contends that he was exposed to herbicides used to control weeds around the outer perimeter of the base and the runways during his period of active service in Guam. He testified that he was responsible for hauling the barrels of herbicide out to the sites where they would be used and returning the barrels to the salvage yard after usage. He has submitted a photograph of himself holding a large barrel that is extensively labeled. Unfortunately, much of the labeling on this barrel is indecipherable; only the name "Guam" can be read. Consequently, it is not possible to determine whether this label also identifies the contents of the barrel. The Department of Defense has compiled an official list reflecting the use, testing, and storage of herbicides at various locations. This list does not indicate that herbicides were used in Guam during the time period when the Veteran was stationed there. During the development of the Veteran's claim, the RO contacted the Department of the Army's Center for Unit Records Research in an attempt to determine whether the Veteran may have been exposed to herbicides in Guam. The Center responded in a September 2008 letter: We cannot document or verify that [the Veteran] was exposed to herbicides while serving at Anderson Air Force Base, Guam. We reviewed the Department of Defense listing of herbicide spray areas and test sites outside the Republic of Vietnam and Guam is not listed. Also, available unit historical data does not document any herbicide spraying, testing, storage or usage at Anderson Air Force Base, Guam. Because the Secretary of VA, in conjunction with scientific input from the National Academy of Sciences, has determined that the herbicides used in Vietnam can cause the Veteran's disease of CLL (see Notice, 72 Fed. Reg. 32395-32407 (2007)), if it can be established that the Veteran was in fact exposed to such herbicides during the course of his service, the nexus to service could be presumed under law. Several of the Veteran's treating physicians, including two oncologists and his primary care physician, have submitted statements to the effect that his CLL could very well have been caused by herbicide exposure during service. However, in this case, the problem lies in the absence of evidence indicating that the Veteran was exposed to herbicides during his active service; he did not have service in Vietnam. In the attempt to establish his exposure to herbicides, the Veteran has submitted multiple documents, including several prior Board decisions in which exposure to herbicides in Guam was conceded. Unfortunately, none of the Board decisions submitted contain references to any specific documentation upon which the Board relied on those cases, such that it is not possible to review and apply the same evidence in this case. Rather, it appears that the Board relied upon particular evidence which may have been specific to those individual claimants. Furthermore, although the Board strives for consistency in issuing its decisions, previously issued Board decisions will be considered binding only with regard to the specific case decided. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1303. In this particular case, nothing in the substance of these other Board decisions noted by the Veteran convinces the Board that the individual facts and circumstances of those cases reasonably relates to the individual facts and circumstances of this case. The Veteran has also submitted several documents printed from the internet, including a report from the Centers for Disease Control concluding that although multiple toxicities have been introduced to Guam over the years, no appreciable public health risks exist on the island. Significantly, this report includes a summary of various military activities at Andersen Air Force Base over the years, but does not indicate that herbicides were used or stored there during the time when the Veteran was stationed there. While other evidence submitted by the Veteran pertaining to news reports and congressional inquiries weighs in favor of finding that herbicides such as Agent Orange have been used in Guam, this evidence still does not establish that the Veteran had any such exposure during his period of military service and, furthermore, is outweighed by the official toxicity reports of record, records of herbicide use maintained by the Department of Defense, and the results of research conducted into the relevant unit records, all of which indicate that the Veteran was not exposed to toxic herbicides during his period of active military service. In short, the evidence does not support the Veteran's claim that he was exposed to herbicides during service. Despite the efforts of the Veteran, his representative, and the VA to locate evidence to support the Veteran's claim, none has been identified. Rather, the evidence generated has tended to contradict the Veteran's assertions that he was exposed on a regular basis to herbicides such as Agent Orange. With regard to the Veteran's testimony, the Board finds it to be credible insofar as these statements relate his general duties in service and experiences, and also finds that the Veteran is competent to provide evidence on the general nature of his experiences in service. For example, that he delivered various drums of liquid around the base is entirely within his competence to relate. That some of this liquid was used to kill weeds at the runways and the outer perimeter of the base is also within his competence. However, an identification of the contents of those drums as the toxic chemical compounds commonly referred to as Agent Orange, or other especially-toxic herbicides which were used for offensive purposes in Vietnam, is not within his competence. First, the Veteran's testimony regarding the identification of the substance in the barrels is not based on his personal knowledge of what he actually observed during his service in Guam. Layno, 6 Vet. App. at 470. Rather, he testified that he did not know that the barrels contained Agent Orange at the time of his active military service, and that he recently became aware that Agent Orange was used in Guam. Secondly, the Veteran's assertion that the chemical in the barrels that he handled is now known to have been Agent Orange is not evidence that can be derived from his senses and does not concern facts or circumstances or convey matters that can be observed and described by a lay person. Id. In developing the Veteran's claim, VA obtained specialized historical and investigatory evidence and reviewed scientific studies in order to resolve the issue of possible exposure to herbicides in Guam. The Veteran also submitted additional documentation purportedly establishing the use of Agent Orange in Guam, and, as discussed above the Board has reviewed and assessed the probative value of that evidence. However, when weighed against the investigatory evidence VA has obtained from the Department of Defense and following a search of the relevant unit records and history, as well as the scientific evidence of record from the Center for Disease Control, the Board found the news reports, congressional inquiries, previous Board decisions, and his lay statements to be less probative than the evidence weighing against the claim. After thorough and sympathetic review of the Veteran's claim, the Board finds that the preponderance of the evidence is against his claim for service connection for CLL. The preponderance of the evidence is against establishing exposure to herbicides such as Agent Orange during the course of his duties in Guam. Absent this element of the claim, the criteria for a grant of service connection are not met. The benefit sought must therefore be denied. Additionally, as service connection must be denied for CLL, and as no other relationship to service is suggested or shown by the evidence (service treatment records are negative, etc.,) all disabilities claimed to have been proximately caused by CLL and/or medical treatment for CLL cannot be viewed as related to service either. See 38 C.F.R. § 3.310. Service connection for chronic bronchitis, pulmonary difficulties, pancytopenia, osteophyte formations of the spine, and peripheral neuropathy of both upper extremities must therefore be denied. Lastly, the Veteran contends, and the evidence supports his contention, that he is rendered unemployable by his CLL and the chronic disabilities related to CLL. However, because service connection is not in effect for CLL or any of the chronic disabilities related to CLL, VA compensation benefits predicated upon unemployability must be denied as well. The Veteran has not asserted that tinnitus, his only service-connected disability, renders him unemployable; rather he asserts that he has had tinnitus since shortly after his discharge from service, during a lengthy period of time when he successfully maintained employment. As there is no indication that the Veteran seeks entitlement to unemployability benefits on the basis of his tinnitus, and there is simply no likelihood that the Veteran could prevail in his claim for unemployability benefits predicated upon the single disability of tinnitus, remand for additional notice or other development would constitute a waste of scarce administrative and judicial resources, with no chance of benefit to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Consequently, no prejudice to the Veteran will result from the denial of his claim for unemployability benefits. ORDER Service connection for CLL is denied. Service connection for chronic bronchitis and pulmonary difficulties is denied. Service connection for pancytopenia is denied. Service connection for osteophyte formations of the spine is denied. Service connection for peripheral neuropathy of both upper extremities is denied. A total disability rating based upon unemployability due to service-connected disabilities is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs