Citation Nr: 1432308 Decision Date: 07/18/14 Archive Date: 07/22/14 DOCKET NO. 10-04 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for type 2 diabetes mellitus, to include as due to herbicide, ionizing radiation, bacillus globigii (BG), or Project Shipboard Hazard and Defense (SHAD) chemical exposure. 2. Entitlement to service connection for hypertension, to include as due to herbicide, ionizing radiation, BG, or SHAD chemical exposure. 3. Entitlement to service connection for residuals of prostate cancer, to include as due to herbicide, ionizing radiation, BG, or SHAD chemical exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The appellant served on active duty from June 1960 to July 1963, and had additional Navy Reserve service. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO). In August 2011, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the record. In December 2011 the Board remanded these issues for additional development. FINDINGS OF FACT 1. The Veteran participated in Project SHAD and was exposed to BG during active service; he is not shown to have been exposed to Agent Orange/herbicides or ionizing radiation during active service. 2. Type 2 diabetes, hypertension, and prostate cancer were not manifested in service or in the first postservice year, and are not shown to be etiologically related to the Veteran's military service, to include as due to exposure to BG/SHAD chemicals therein. CONCLUSION OF LAW Service connection for type 2 diabetes, hypertension, and residuals of prostate cancer is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claims prior to their initial adjudication. A June 2008 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and informed him of disability rating and effective date criteria. He has had ample opportunity to respond and supplement the record, and has not alleged that notice was less than adequate. During the Board hearing, the Veteran was advised of the evidentiary requirements for his claims. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for a June 2009 VA examination addressing the claims of service connection for type 2 diabetes and residuals of prostate cancer. The record also contains the report of a VA SHAD exposure examination that also considered whether the Veteran's hypertension is related to herbicide or BG exposure. As is discussed in greater detail below, the examination reports/opinions are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As is also discussed below, there is no indication (or assertion) in the record that the disabilities at issue were manifested in, or are otherwise directly related to, the Veteran's service and no evidence to support his vague assertion that he may have been exposed to radiation aboard the U.S.S. Navarro. Consequently, VA medical opinions to address the possibility of such etiologies are not necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that there is sufficient competent medical evidence to decide the instant claims. The relevant development requested by the Board's December 2011 remand (i.e., for available VA and Social Security Administration (SSA) records) was completed. VA treatment records were acquired and SSA records were requested. In January 2012, SSA responded that there were no medical records for the Veteran (who may, as was noted in the Board's remand, be receiving SSA retirement, not disability, benefits.) [Notably, in his June 2008 initial claim for benefits, the Veteran indicated that he had not claimed and was not receiving SSA disability benefits.] In April 2012, the Veteran was notified that records were unavailable from SSA, and asked to provide any records in his possession; he did not respond. A formal finding of unavailability of SSA records was prepared for the file. The Board finds there has been substantial compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998); see also D'Aries v. Peake, 22 Vet. App. 97 (2008). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claims. Legal Criteria, Factual Background, and Analysis The Board notes it has reviewed all of the evidence in the record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a claimed disability, there must be evidence of: A present disability; incurrence or aggravation of a disease or injury in service; and 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 determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (including diabetes, hypertension, and malignant tumors) may be service-connected on a presumptive basis if manifested to a compensable degree in a specific period of time postservice (one year for diabetes, hypertension, and malignant tumors). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. If a Veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease manifested to a degree of 10 percent or more the Veteran is entitled to a presumption of service connection for such disease even though there is no record of such disease during service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307, 3.309(e). Type 2 diabetes and prostate cancer are enumerated diseases. Veterans who served in Vietnam during the Vietnam Era are presumed to have been exposed to herbicides/Agent Orange. Service connection for a disability that is claimed to be due to exposure to ionizing radiation during service can be demonstrated by one of three possible methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that may be service-connected on a presumptive basis as specific to radiation-exposed veterans. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, a "radiogenic disease" may be service-connected pursuant to 38 C.F.R. § 3.311. Third, direct service connection may be granted under 38 C.F.R. § 3.303(d) when it is otherwise established that a disease diagnosed after discharge was incurred during active service, including as a result of exposure to radiation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A disease diagnosed after discharge may still be service connected if the evidence, establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d); Combee, 34 F.3d at 1043. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed, Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative 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(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In his June 2008 claim seeking service connection for the disabilities on appeal, the Veteran asserted that he "was stationed on the U.S.S. Navarro during atomic and biological testing aboar[d] ship." He specifically alleged exposure to Agent Orange/herbicides and ionizing radiation (through atmospheric testing) while serving in the Pacific Ocean. The Veteran's STRs are silent for complaints related to any of the disabilities at issue. The earliest medical evidence of type 2 diabetes and hypertension is in April 2000 private medical records. [The Veteran asserts that he was first treated for type 2 diabetes and hypertension in 1993.] Prostate cancer was first diagnosed in April 2004. Military records confirm that the Veteran was on the U.S.S. Navarro while it was in the official waters of the Republic of Vietnam from May 13, 1962, to May 21, 1962; there is no evidence in those records that the ship was in the inland waterways of Vietnam or that any personnel went ashore during that time. That same month, the ship was ordered to the Gulf of Siam and travelled upriver to unload troops and equipment in Bangkok. The ship then proceeded to Subic Bay to stand-by for further direction. In December 2002, the Veteran was notified that the U.S.S. Navarro was involved in sea-based tests (SHAD) involving chemical and biological threats. In July 2008, the Veteran provided evidence regarding two different SHAD tests in which the U.S.S. Navarro was involved while he was assigned to that ship. Both tests involved the release of BG, a biological tracer. Eager Bell, Phase II, was conducted approximately 175 miles west of Oahu in February, March, and June 1963. Autumn Gold was conducted in May 1963, 60 miles west-southwest of Oahu. During March 2008 VA treatment, the Veteran stated that received a letter from VA indicating that he "was exposed to radiation [in] 1961 near Hawaii." In a March 2009 VA treatment record, the provider noted that the Veteran "continues to have concerns about paperwork regarding his possible radiation exposure during his service." The Veteran asserted that he had not been adequately examined for radiation and Agent Orange exposure by his treatment providers and requested a War Related Illness and Injury Study Center (WRIISC) consultation. In May 2009, the Veteran was evaluated at a WRIISC clinic to determine whether he has any long term effects related to his participation in Project SHAD (or to Agent Orange/herbicides). The examiner discussed the Veteran's medical and military history. Regarding BG exposure, the examiner noted that it "is often considered harmless to healthy individuals," but may increase infection risk immediately after exposure for those with compromised immune systems; any long term/late developing complications would be related to such acute infections, which the examiner noted were not shown in the Veteran's service records. Regarding Agent Orange/herbicide exposure-related illness, the examiner noted that the Veteran was not in Vietnam or any other area acknowledged as using Agent Orange/herbicides. Radiation exposure was not discussed. On June 2009 VA examination to determine whether there is a nexus between the claimed disabilities and BG exposure, the examiner noted the Veteran's medical history and diagnosed, inter alia, type 2 diabetes and residuals of prostate cancer. (The examiner was not asked to opine regarding the etiology of hypertension.) The examiner explained that he had reviewed information from the National Institutes of Medicine, which confirmed a well-known link between BG and food poisoning and certain infections (such as prosthetic valve endocarditis, ventriculitis/brain abscess, and endophthalmitis). The examiner stated that he could not provide a nexus opinion without resort to speculation because there was "no information available on any linkage between exposure to [BG] and diabetes or prostate cancer." In a statement accompanying his January 2010 substantive appeal, the Veteran stated that the U.S.S. Navarro "did go up the [unspecified] river and to port to drop off 500 troops." He further stated that he disembarked to retrieve paperwork from another ship. In a July 2011 statement, the Veteran's accredited representative noted the Veteran's claims that he was exposed to atomic and biological testing while aboard the U.S.S. Navarro and that he was on the inland waterways of Vietnam. In his testimony at the August 2011 hearing before the undersigned, the Veteran denied that he ever went ashore in Vietnam; he stated that he disembarked in Bangkok, Thailand. He also testified to his belief that the chemicals used in the SHAD testing near Hawaii included Agent Orange. After questioning, he clarified that he had no specific knowledge or indication of Agent Orange exposure, but stated that during a Project SHAD physical a VA physician told him that the disabilities at issue are the result of Agent Orange exposure. (See Hearing Transcript, pages 6-7, 12.) Regarding radiation exposure, the Veteran stated that they were told that they were participating in "nuclear water raids for testing the ship" "with water intake" and that there would be a nuclear repair of some kind on the ship. (See id., pages 5, 7-8.) He denied wearing a dosimeter and stated that he was downstairs during testing. He stated that after each test, he "had to scrub the ship down and wash it down and what not." (See id., page 8.) The Veteran's representative conceded that the U.S.S. Navarro was not a nuclear-powered vessel and that the Veteran "has no specific knowledge" of radiation exposure. It is not in dispute that the Veteran has current diagnoses of type 2 diabetes, hypertension, and residuals of prostate cancer. What remains necessary for him to establish service connection for such disabilities is competent evidence of a nexus between the disabilities and his active service. Regarding exposure to herbicides, the record contradicts the Veteran's assertion of such exposure. Records from the U.S.S. Navarro confirm that, during his service aboard, it travelled down a long river to deliver troops and supplies. However, as conceded by the Veteran at the August 2011 hearing, ship records indicate that the river was in Thailand (and that the deliveries made were to Bangkok); records also indicate a brief period where the U.S.S. Navarro was in the official waters of Vietnam, but there is no record of travel on the inland waterways. At the hearing, the Veteran denied setting foot in Vietnam during service. Finally, although he asserted that the Project SHAD testing involved Agent Orange as well as BG, he has not established that he is a chemist or is otherwise competent to opine as to the chemical makeup of the tests performed off the coast of Hawaii. To the extent that he claimed that the VA examiner performing the SHAD exposure-related physical confirmed Agent Orange/herbicide exposure, the Board notes that the VA examiner's report indicates no evidence of such exposure. The Board finds that the Veteran has conceded that he was not exposed to Agent Orange/herbicides in Vietnam, that he is not competent to opine on the specific chemicals involved in project SHAD, and that the record does not otherwise support his assertions of exposure Agent Orange/herbicide in service. As such exposure is not shown, service connection based on such exposure is not warranted. Regarding radiation exposure, the Board acknowledges the Veteran's representative's July 2011 statement that no development was undertaken by the RO with respect to radiation exposure. However, the Board finds that there is no avenue of development for VA to pursue in this matter. There is no assertion that the Veteran was on a nuclear-powered ship, nor is there an assertion that he participated in one of the enumerated "radiation-risk" activities described in 38 C.F.R. § 3.309(d) (including atmospheric testing conducted in the Pacific Ocean). During the Board hearing, the representative denied that the Veteran had any "specific knowledge" of radiation exposure, and the Veteran stated that he did not wear a dosimeter/had no specific knowledge of anyone wearing a dosimeter. To the extent that any "nuclear water raid" test involving water intake systems took place, the Board notes there is no evidence that testing the ship's response to a hypothetical presence of atomic materials (consistent with the described purpose of Project SHAD), involved actual atomic materials, such that service members on board ship would have been exposed to radiation (requiring dosimetry/protective equipment). While the Veteran has alleged that he received a letter from VA notifying him of radiation exposure (and requested examination as a result), the Board finds that the letter in question notified him of exposure to biological testing with BG (Project SHAD) only and that the requested WRIISC examination was consistent with that letter (i.e., it considered whether the Veteran's disabilities were related to Project SHAD/BG exposure). [Notably, following the August 2011 hearing, the record was held open for 60 days for the Veteran to submit additional materials to support his contentions; no new evidence was submitted, and his representative's post remand written argument did not continue the assertion of radiation exposure.] Project SHAD records released by VA and Department of Defense do not show the use of atomic materials, and there is no other evidence of record supporting a theory of radiation exposure. Thus, the Board finds that the Veteran's assertion that he may have been exposed to radiation is no more than conjecture unsupported by any factual data or research materials. As he has not identified a specific mechanism of radiation exposure, a remand for development to investigate such exposure and readjudicate the claims on that theory of entitlement would serve no useful purpose. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). Consequently, the Board finds that there is no evidence of radiation exposure in service, and service connection based on such exposure is not warranted Project SHAD records confirm that the Veteran was exposed to BG, a biological agent, and the record contains medical opinion evidence concerning a nexus between such exposure and the disabilities on appeal. The May 2009 WRIISC examiner considered the Veteran's current disabilities (including hypertension), his medical and service history, and his STRs and noted there was no evidence of acute infection (or later residuals), the health effect associated with BG exposure. The June 2009 VA examiner also considered the record evidence (with respect to prostate cancer and type 2 diabetes) and noted that BG is associated with food poisoning, as well as infections. The VA examiner stated that he could not resolve the issue of nexus between the claimed disabilities and exposure to BG without resort to speculation. He explained that there is no medical literature that addresses such association (i.e., the state of medical knowledge is insufficient to form an opinion on the question). Both examiners examined the Veteran, considered the record, noted BG exposure, described the health effects associated with BG exposure, and concluded there was no nexus between BG exposure and the disabilities at issue. Taken together, the Board finds these examinations probative evidence weighing against a finding that the disabilities on appeal are related to exposure to BG in service. The Board has also considered whether the claimed disabilities may somehow otherwise be directly related to the Veteran's service connection. However, there is no evidence (or allegation) that the disabilities became manifest in service or in the first year following the Veteran's discharge from active duty (so as to warrant consideration of the chronic disease presumptive provisions under 38 U.S.C.A. §§ 1112, 1137). Consequently, service connection for the claimed disabilities on the basis that they became manifest in service and persisted or on a presumptive basis as chronic diseases is not warranted. There is no competent (medical opinion) evidence that relates the disabilities to service. Notably, the first alleged manifestation of any of the disabilities in question is 30 years after separation from service (which of itself is a factor for consideration against a claim of service connection absent applicability of any presumptions or competent (medical) supporting evidence. The Board has considered the Veteran's lay statements concerning the etiology of his diabetes, hypertension, and prostate cancer. While he may be competent to report symptoms he experiences, absent any applicable presumptive provisions or evidence of onset in service and continuity since, he is not competent to, by his own opinion, relate the disabilities on appeal to his active service. He is a layperson, and lacks the training/expertise to opine competently on medical questions such as those presented in the instant claims, i.e., whether diabetes, hypertension, or prostate cancer first documented many years after service may be related to an event, injury, or disease in service rather than to intervening etiological factors (those are medical questions, and he is not shown to have the requisite expertise to address them. In light of the foregoing, the Board finds that the preponderance of the evidence is against these claims. Therefore the benefit of the doubt doctrine does not apply. The claims must be denied. ORDER Service connection for type 2 diabetes is denied. Service connection for hypertension is denied. Service connection for residuals of prostate cancer is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs