Citation Nr: 1754438	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  13-27 010	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Whether new and material evidence (NME) has been submitted to reopen the claim of entitlement to service connection for lumbar back strain, and, if so, whether service connection is warranted. 

2.  Whether NME has been submitted to reopen the claim of entitlement to service connection for diabetes mellitus type II (DMII), and, if so, whether service connection is warranted, to include as due to herbicide agent exposure. 

3.   Whether NME has been submitted to reopen the claim of entitlement to service connection for prostatitis, and, if so, whether service connection is warranted, to include as due to herbicide agent exposure.

4.  Entitlement to service connection for ischemic heart disease (IHD), to include as due to herbicide agent exposure. 

5.  Entitlement to service connection for a right hand disability.  

6.  Entitlement to service connection for a bilateral leg disability. 
REPRESENTATION

Appellant represented by:	Gregory D. Keenum, Attorney 


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

H. Daus, Associate Counsel


INTRODUCTION

The Veteran had qualifying service from November 1965 to October 1968, including service in the Korean demilitarized zone (DMZ) from March 1966 to October 1967.   

These matters come before the Board of Veterans' Appeals (Board) on appeal from: a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico; a July 2011 rating decision issued by the VARO in Nashville, Tennessee; and a May 2012 rating decision issued by the VARO in Nashville, Tennessee.

In August 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. 

The issue of entitlement to service connection for prostatitis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  Entitlement to service connection for lumbar back strain was denied in an April 1998 rating decision and a March 2000 Board decision; these decisions became final.  However, NME pertaining to this disability was received since the March 2000 Board decision.  

2.  Entitlement to service connection for DMII was denied in an April 1998 rating decision that became final.  However, NME pertaining to this disability was received since the April 1998 rating decision. 

3.  Entitlement to service connection for prostatitis was denied in an April 1998 rating decision and a June 1999 Board decision; these decisions became final.  However, NME pertaining to this disability was received since the June 1999 Board decision.   

4.  The Veteran has experienced continuity of symptomatology of lumbar back pain from service to the present.

5.  The Veteran was not exposed to herbicide agents in the Korean DMZ.  

6.  The Veteran's DMII and IHD are not etiologically related to service. 

7.  During the August 2016 Board hearing, the Veteran and his representative requested to withdraw the appeals for entitlement to service connection for a right hand disability and a bilateral legs disability. 


CONCLUSIONS OF LAW

1.  NME has been received regarding the lumbar back strain, DMII, and IHD claims.  See 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017).

2.  The criteria for service connection for lumbar back strain have been met.  See 38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303(b), 3.304 (2017); Clyburn v. West, 12 Vet. App. 296 (1999).

3.  The Veteran is not presumed to have been exposed to herbicide agents in the Korean DMZ.  See 38 C.F.R. §§ 3.307(a)(6)(iv), 3.309(e) (2017).

4.  The criteria for service connection for DMII and IHD have not been met.  See 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.385 (2017).

5.  The criteria for withdrawal of the appeals for entitlement to service connection for a right hand disability and a bilateral legs disability have been met.  See 38 U.S.C. § 7105(b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran generally contends that his lumbar back strain, DMII, prostatitis, and IHD are etiologically related to service.  Further, he contends that he should be granted presumptive service connection for DMII, prostatitis, and IHD based on his Korean DMZ service and the provisions of 38 U.S.C. § 1821.  For the reasons discussed below, the Board finds that: (1) NME has been received to reopen the lumbar back strain, DMII, and prostatitis claims; (2) service connection is warranted for lumbar back strain; (3) the Veteran was not exposed to herbicide agents in the Korean DMZ; (4) service connection is not warranted for DMII or IHD; and (5) dismissal is warranted for the appeals for entitlement to service connection for a right hand disability and a bilateral legs disability.  

I.  NME to reopen lumbar back strain, DMII, and prostatitis claims

Entitlement to service connection for lumbar back strain was denied in an April 1998 rating decision and a March 2000 Board decision; these decisions became final.  Entitlement to service connection for DMII was denied in an April 1998 rating decision that became final.  Entitlement to service connection for prostatitis was denied in an April 1998 rating decision and a June 1999 Board decision; these decisions became final.  See 38 U.S.C. §§ 5108, 7104, 7105(a), (b)(1), (c); 38 C.F.R. § 20.302; Roebuck v. Nicholson, 20 Vet. App. 307 (2007); Bingham v. Nicholson, 421 F.3d 1346, 1349 (Fed. Cir. 2005).  The Board is required to independently evaluate whether NME has been submitted.  Since the April 2006 rating decision, the claims file has been supplemented with, in pertinent part: (1) private and VA treatment records; (2) lay testimony during the August 2016 Board hearing; and (3) medical records for the Veteran's son born with spina bifida.  

The Veteran's claims were previously denied under the well-grounded theory, which was subsequently eliminated.  See 38 U.S.C. § 5107(a) (West 1991); Veterans Claims Assistance Act of 2000 (VCAA), Pub. Law No. 106-475, 114 Stat. 2096 (2000).  The aforementioned evidence is new, in that it is not cumulative or redundant of that previously of record, and is material, in that it is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims.  See private and VA treatment records (documenting continuous lumbar back pain since service); August 2016 testimony (describing continuous lumbar back pain since service and alleging presumptive herbicide agent exposure pursuant to 38 U.S.C. § 1821); medical records for the Veteran's son born with spina bifida (in support of presumptive exposure pursuant to 38 U.S.C. § 1821 contention).  As such, the supplemental evidence is new and material and reopening of the claims is warranted.  

II.  Service connection for lumbar back strain

Although medical evidence is generally necessary for a nexus to service, lay evidence can be sufficient to show continuity of symptoms after service, as a foundation for a nexus opinion, to link chronic in-service symptoms to the same diagnosed current disability, or as a substitute for a nexus.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994).  In April 1968, the Veteran was diagnosed with lumbar back strain after an in-service injury.  The Veteran has competently reported low back pain ever since, which is consistently corroborated by objective medical findings and third-party lay statements.  See service medical records, VA treatment records, and private treatment records (documenting chronic, low back pain since the in-service injury); February 1998 statements by the Veteran's mother and sister (documenting the Veteran's reports of back pain after separation); August 1998 treatment record from The Patterson Clinic (diagnosing lumbar sprain).  As the Veteran has experienced continuity of symptomatology of lumbar back pain from service to the present, service connection is warranted.

III.  Service connection for DMII and IHD

The Veteran's DMII and IHD provoke analysis under both the presumptive and direct theories of service connection.  However, presumptive service connection is not warranted because the disabilities did not manifest to a compensable degree of 10 percent or more within one year from separation.  See 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  Presumptive service connection is also not warranted because, despite contentions, the Veteran is not presumed to have been exposed to herbicide agents during service.  See 38 C.F.R. §§ 3.307(a)(6)(iv), 3.309(e).  Specifically, the Veteran pointed out an apparent discrepancy regarding the beginning date for the presumptive period of herbicide agent exposure for veterans who served in the Korean DMZ (pursuant to 38 C.F.R. § 3.307(a)(6)(iv), the presumptive period is from April 1, 1968, to August 31, 1971, while, pursuant to 38 U.S.C. § 1821, it runs from September 1, 1967, to August 31, 1971, resulting in a seven-month difference).  However, based on the evidence discussed below, the Board finds that the Veteran is not presumed to have been exposed to herbicide agents in the Korean DMZ and has not presented competent evidence of direct exposure.

In looking at the legislative history, 38 U.S.C. § 1821 was created by the Veteran's Benefits Act of 2003, Pub. L. No. 183, 117 Stat. 2651.  In 2009, following the creation of that benefit, VA proposed a rule which, in pertinent part, would have amended 38 C.F.R. § 3.307(6) to include a presumption of herbicide agent exposure for veterans who served at the Korean DMZ between April 1, 1968, and July 31, 1969.  See 74 Fed. Reg. 36,640 (July 24, 2009).  Following the comment period and in the final rule, VA amended 38 C.F.R. § 3.307(6) to include the presumption of herbicide agent exposure for those veterans who served at the Korean DMZ from July 31, 1969, to August 31, 1971.  See 76 Fed. Reg. 4,245 (January 25, 2011).  In the explanation for the change in end dates from the proposed rule to the final rule, VA acknowledged that, while the evidence indicates that herbicide agents were only used during the originally proposed period of April 1, 1968, to July 31, 1969, it would be consistent with congressional intent and generally reasonable to move the date of the presumptive period back so that individuals exposed to residuals of the herbicide agents, if not the herbicide agents themselves, would also be covered by the period.  Id at 4,246. 

However, in promulgating the final rule, VA also specifically declined to alter the start date of the presumptive period for herbicide agent exposure at the Korean DMZ to be in sync with the period stated in 38 U.S.C. § 1821.  In refusing to change the start date of the presumptive period, VA stated: 

Neither the statute nor the legislative history suggests that herbicides were used prior to 1968.  See 149 Cong. Rec. H11705-01 (2003) (noting that the Secretary of Defense identified that herbicide [agents] were used between 1968 and 1969), see also 149 Cong. Rec. S15133-01 (2003).  Furthermore, the statute expressly requires that VA, in consultation with the Department of Defense (DoD), determine whether exposure occurred between September 1, 1967, and August 31, 1971, and thus clearly permits a finding as to whether such exposure could have occurred within that period based on DoD information as to dates of herbicide [agent] application.  As noted in the proposed rule, DoD has advised that herbicide [agents] were applied near the Korean DMZ from April 1968 to July 1969.  Therefore, we are revising 38 CFR 3.307(a)(6)(iv) and 3.814(c)(2) to presume herbicide exposure for veterans who served in or near the Korean DMZ between April 1, 1968, the earliest date of potential exposure indicated by DoD, and August 31, 1971, the date identified by Congress.  If VA receives evidence that herbicide [agents] were used in or near the DMZ from an earlier date, VA may rely on that information in individual cases and may revise the presumption as necessary.  Id. 

Essentially, VA stated that, while it was possible that DMZ veterans would be exposed to residuals of herbicide agents after active use of them had stopped, and thus the end date for the presumptive period should be adjusted back, there was no reason to change the start date of the period because there was no objective evidence that herbicide agents were utilized prior to April 1, 1968.  

As such, the Board cannot presume herbicide agent exposure during the Veteran's March 1966 to October 1967 Korean DMZ service pursuant to the presumptive period contained in 38 U.S.C. § 1821, as the Veteran's Benefits Act of 2003 specifically stated that VA and the DoD were to work together to determine whether there was exposure between September 1, 1967, and August 31, 1971.  VA did precisely that, and, in doing so, determined that the appropriate start date for the presumptive period is April 1, 1968, the earliest date it could be ascertained that herbicide agents were used.  As such, the Veteran cannot be presumed to have been exposed to herbicide agents and there is no competent evidence of direct exposure.

Finally, direct service connection is not warranted because there is no competent evidence that either the DMII or IHD was at least as likely as not caused or aggravated beyond natural progression by service.  See Combee v. Brown, 34 F.3d 1039, 1043-33 (Fed. Cir. 1994).  Further, VA is not required to provide any examinations for these disabilities, as there are no competent indications that they may be related to service and no reports of continuity of pertinent symptomatology since service for either.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  As the Veteran does not have the medical background necessary to determine etiology and there is no competent evidence of record establishing medical nexuses, service connection for both disabilities must be denied.   

IV.  Withdrawal of right hand and bilateral legs appeals

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  See 38 U.S.C. § 7105.  An appellant or an authorized representative may withdraw any or all issues involved in an appeal at any time before the Board promulgates a decision.  See 38 C.F.R. § 20.204.  During the August 2016 Board hearing, the Veteran and his representative requested to withdraw the appeals for entitlement to service connection for a right hand disability and a bilateral legs disability.  Therefore, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review these appeals and they are dismissed.


ORDER

Reopening of claims for lumbar back strain, DMII, and prostatitis is granted.

Service connection for lumbar back strain is granted.

Service connection for DMII and IHD is denied.

The claims for right hand disability and bilateral legs disability are dismissed.


REMAND

The Veteran generally contends that his prostatitis is etiologically related to service, including herbicide agent exposure; however, the evidence is currently insufficient to decide the claim.  As previously discussed, the Board has found no herbicide agent exposure; however, the Veteran's inability to prevail on a presumptive basis does not foreclose his opportunity to prevail on a direct basis.  See Combee, 34 F.3d at 1043-33.  As the Veteran's service treatment records contain diagnoses and symptoms that may be related to the development of prostatitis, further medical opinion is required.  See McLendon, 20 Vet. App. at 79.

Accordingly, the case is REMANDED for the following action:

Obtain a medical nexus opinion to determine the etiology of the Veteran's prostatitis.  The examiner should address: 

(a)  whether the prostatitis was at least as likely as not (50 percent probability or greater) caused or aggravated beyond natural progression by service; and

(b)  service treatment records documenting urological problems (including, but not limited to, those dated September 27, 1966; February 6, 1967; January 29, 1968; February 27, 1968; March 20, 1968; March 22, 1968). 

The examiner is advised that the Veteran was not exposed to herbicide agents during service.  

An opinion should be provided for any opinion given. 

The Board defers to the examiner's discretion to determine whether another in-person examination is required to render the requested opinion.

The Veteran has the right to submit additional evidence and argument on the remanded matter.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).  All remanded claims must be handled expeditiously.  See 38 U.S.C. §§ 5109B, 7112.



______________________________________________
R. FEINBERG
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs