Citation Nr: 1550426 Decision Date: 12/02/15 Archive Date: 12/10/15 DOCKET NO. 10-22 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right leg disability, claimed as right leg pain. 2. Entitlement to service connection for a low back disability, claimed as misalignment of spinal column as secondary to right leg pain. 3. Entitlement to service connection for a right foot, ankle, and/or knee disability, claimed as secondary to right leg pain. 4. Entitlement to service connection for chronic prostatitis as due to exposure to herbicides. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to January 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In his May 2010 substantive appeal, the Veteran requested a Travel Board hearing before a Veterans Law Judge. However, in March 2015, the Veteran withdrew the hearing request. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the U.S. Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Although the Veteran claims service connection for malalignment of spinal column secondary to right leg pain, the Board will consider all the Veteran's lumbar spine diagnoses in light of the Court's decision in Clemons. The medical evidence of record shows current diagnoses of degenerative joint disease and spinal stenosis. Accordingly, the Board has broadly defined the issue of service connection for low back disability, as shown on the title page of this decision, to provide the most favorable review of the Veteran's claim. The issue of entitlement to service connection for chronic prostatitis as due to exposure to herbicides is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. There has been no demonstration by competent clinical, or competent and credible lay, evidence of record of a current diagnosis of a right leg disorder at any time proximate to, or since, the Veteran's claim. 2. The Veteran's currently diagnosed low back disability has not been shown to be at least as likely as not causally related to his active service, nor causally related to, or aggravated by, any service-connected disability. 3. There has been no demonstration by competent clinical, or competent and credible lay, evidence of record of a current diagnosis of a right foot, ankle, or knee disorder at any time proximate to, or since, the Veteran's claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a right leg disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002); 38 C.F.R. § 3.303 (2015). 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2015). 3. The criteria for service connection for a right foot, ankle, or knee disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). A VA letter issued in October 2010 satisfied the duty to notify provisions with respect to service connection, and notified the Veteran of the regulations pertinent to the establishment of an effective date and disability rating in the event of award of the benefit sought. VA's duty to assist has also been satisfied in this case. The Veteran's service treatment records and post-service private and VA treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran reported that he underwent a right leg surgery at the Air Force Base (AFB) hospital in Udorn, Thailand in 1971. In June 2012, the RO requested clinical records Udorn AFB hospital. In July 2012, the National Personnel Records Center responded that no active duty inpatient clinical records were found. In a December 2012 letter, the RO informed the Veteran that these records are unavailable and he should submit any relevant documents in his possession in support of his claims. 38 C.F.R. § 3.159(e). The Veteran was not provided VA examinations for the claimed right leg, foot, ankle, or knee disorder. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, the only evidence that any right leg disability is related to his military service is his own unsupported lay statements connecting the condition with service. Moreover, there is no medically competent diagnosis of a chronic right leg, foot, ankle, or knee disorder. Accordingly, the Board finds that referral for a VA medical examination is not warranted. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection will be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year after discharge from service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (2015). Service connection may be also established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2015). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. The Veteran contends that he underwent a surgical repair of the right leg while in Thailand after sustaining an injury during hand to hand combat training in 1971. In his September 2008 claim, he reported that he has been unable to stand or walk for long periods of time or carry heavy objects due to limited weight-bearing. He also claims misalignment of the spinal column and right foot, ankle and knee conditions due to the claimed right leg injury. The presence of a right leg, foot, ankle, or knee disorder is not shown proximate to, or during, the period on appeal. A current disability is generally shown by evidence after the claim is submitted or shortly before. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement a current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim); Romanowski v. Shinseki, 26 Vet. App. 289, 294 (2013). The Veteran's claims were received in September 2008. The record contains private treatment records from East Texas Medical Center, dated from April 1998 to April 2008, and VA treatment records dated from June 2010 to September 2013. These records do not show the existence of a chronic right leg, foot, ankle or knee disorder which is related to military service. Since there is no confirmed diagnosis of a chronic right leg, foot, ankle, or knee disorder, the Board cannot conclude that any such disorder is currently present. A November 2010 VA history and physical report reflects the Veteran's report of surgery on the right leg while in the military, which the VA physician stated "sounds like I and D [(incision and drainage)]." The physician noted that the Veteran complained of leg pain and that he stated was from his leg injury in service. However, the physician noted no objective evidence of a right leg disorder. On review of systems, musculoskeletal examination was negative for muscle pain or joint aches. A symptom standing alone does not constitute a disability without an identified basis for the finding or symptom. See Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) (Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. West, 239 F.3d 1356, 1361-62 (Fed. Cir. 2001). No underlying pathology relating to the reported right leg pain has been diagnosed or identified, nor is there any objective evidence of an illness, disease, injury, or limitation of function, and as such, right leg pain alone does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 259 F.3d 1356, 1361-62 (Fed. Cir. 2001). Because entitlement to service connection requires the presence of a current disability, the Board finds that service connection for right leg, foot, ankle, or knee disability has not been established. See Brammer v. Derwinski, 3 Vet. App. 223 (1992) (indicating that service connection presupposes a current diagnosis of the condition claimed). Thus, service connection for a right leg, foot, ankle, and knee disability is not warranted. With regard to the claim for service connection for a low back disability, the medical evidence of record shows current diagnoses of degenerative joint disease and spinal stenosis of the lumbar spine. However, the Veteran's low back disability first manifested many years after service and there is no medical evidence relating this condition to service. Service treatment records are negative for a low back condition. On his November 1971 separation examination, clinical examination of the spine was normal and the Veteran denied back trouble of any kind. The first evidence of record noting low back condition is approximately 30 years after service. A September 2001 magnetic resonance imaging (MRI) showed Grade 1 spondylolisthesis at L4-5 without evidence of spondylolysis; the lumbar vertebrae are otherwise in anatomic alignment. As noted above, the Veteran contends that his low back disability is as secondary to right leg disability. However, service connection on a secondary basis cannot be established as service connection for a right leg disability is denied herein. The Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claims, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right leg disability, claimed as right leg pain, is denied. Entitlement to service connection for a low back disability, claimed as misalignment of spinal column as secondary to right leg pain, is denied. Entitlement to service connection for right foot, ankle, and knee disability, claimed as secondary to right leg pain, is denied. REMAND The Veteran contends that his chronic prostatitis is a result of exposure to herbicides during military service. The medical evidence of record shows a current diagnosis of chronic prostatitis and a history of elevated prostate-specific antigen (PSA) level/hematuria since as early as in 1998. During an April 2011 RO hearing, the Veteran testified that he first had elevated PSA level of 10.5 in 1991. With regard to his claimed in-service exposure to herbicide, the Veteran has reported that he visited Vietnam on two different occasions, once in transit and then the other time on temporary duty for three days to cover for another technician who was on rest and recuperation. Service personnel records only show that the Veteran served in Okinawa, Japan from January 1969 to January 1971 and in Thailand from January 1971 to January 1972. A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents during that service, absent affirmative evidence to the contrary. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii) (2015). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2015). Although chronic prostatitis is not one of the diseases for which service connection can be granted on a presumptive basis based on exposure to herbicides, the Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). In a February 2011 VA memorandum, the RO found that the information required to verify the Veteran's service in the Republic of Vietnam or Agent Orange exposure during military service was insufficient to send to the Joint Services Records Research Center (JSRRC) or the National Archives and Records Administration (NARA). It was noted that although the Veteran served at the Udorn AFB in Thailand, his MOS in communications is not one of the MOS's that can concede exposure to herbicides. Exposure to herbicides is therefore not presumed based on the circumstances of his service. 38 C.F.R. § 3.307(a) (6); VA Adjudication Procedures Manual M21-1MR, IV.ii.2.C.10. However, the Veteran may still establish service connection with evidence of actual exposure to herbicides during service. Where a veteran is not presumed to have been exposed to herbicides, the VA Adjudication Manual requires that the Veteran's description of exposure be provided to the Compensation Service for a review of the Department of Defense inventory of herbicide operations to determine whether herbicides were used as alleged. See M21-1MR, Part IV, Subpart ii, 2.C.10.o. If the Compensation Service's review does not confirm herbicide use as alleged, then a request is to be sent to the JSRRC for verification of herbicide exposure. Id. Here, the Veteran provided details about his reported exposure to Agent Orange in Okinawa and Thailand. In an April 2011 written statement and during his April 2011 RO hearing, the Veteran reported that while serving in Okinawa, Japan, his work station was situated on the rear perimeter of the U.S. Army Security Agency field station Sobe Okinawa and Agent Orange was transported, stored and tested around the base perimeters. His duties involved moving between the communications center and radio transmitter building to carry out quality control checks. In Thailand, he was assigned to the 7th radio research station on Ramasun Army base, which was not far away from the perimeter and the communications center was surrounded by additional perimeter fence. During this time, he assisted with quality control checks of each of the dipole antennas (inner & outer rings) comprising the FLR-9 Antenna arrays. He also drove a truck to the base perimeter to help out the motor pool, occasionally. The RO did not develop the case in conformity with the requirements of M21-1MR. The Court of Appeals for Veterans Claims (Court) has held that evidentiary development procedures as provided for in VA's Adjudication Procedure Manual are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with the evidentiary development outlined in M21-1). Consequently, remand is required for VA to properly develop and investigate the Veteran's allegations. 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. Obtain any updated treatment records for the Veteran from the VA Central Texas Healthcare System (HCS) and all associated outpatient clinics, dated from September 2013 to the present. 2. Provide the Veteran proper notice with respect to the prostatitis claim based on herbicide exposure. In particular, this notice must include the procedural steps to verify such exposure as outlined in the M21-1MR. Pursuant to the VBA Adjudication Manual, M21-MR IV.ii.2.C.10.o., the Veteran should be asked again to provide the approximate dates, location, and nature of his alleged exposure to Agent Orange while stationed in Okinawa, Japan and Ramasun Army base in Thailand, in an attempt to verify herbicide exposure on a factual basis in locations other than the Republic of Vietnam. 3. Forward the Veteran's description of exposure to the Compensation Service for a review of the Department of Defense inventory of herbicide operations to determine whether herbicides were used as alleged. See M21-1MR, Part IV, Subpart ii, 2.C.10.o. 4. If the Compensation Service's review does not confirm herbicide use as alleged, then a request is to be sent to the Joint Service Records Research Center (JSRRC) for verification of herbicide exposure. Id. 5. If, and only if the Veteran's exposure to herbicides in service has been verified, schedule the Veteran for a VA examination by a physician with the appropriate expertise to determine the nature and etiology of chronic prostatitis. The examiner must review the record, and the examination report should show consideration of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that chronic prostatitis is related to active service, to include any verified herbicide exposure. The examiner should specifically comment on whether any diagnosed prostatitis had initial manifestation during active service, and should opine as to the most likely etiology. The examiner should discuss the Veteran's service, to include assertions as to exposure to herbicides. The examination report must provide a complete rationale for all opinions. 6. After completing the above development, adjudicate the claim on appeal, taking into consideration any newly acquired evidence. If the benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs