Citation Nr: 1754972 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-02 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for bilateral upper extremity peripheral neuropathy. 3. Entitlement to service connection for bilateral lower extremity peripheral neuropathy. 4. Entitlement to service connection for prostate cancer. 5. Entitlement to service connection for hypertension, to include as secondary to coronary (heart) disease. 6. Entitlement to service connection for a disability manifested by bone and/or limb pain of the body (to include ankles, knees, wrists, shoulder, elbows, and back). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from September 1973 to August 1975. These matters come before the Board of Veterans' Appeals (Board) from September 2010 and March 2012 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee. (The Veteran's claim for service connection for diabetes was originally denied in a September 27, 2010 rating decision. In an August 2011 statement, received by VA on September 26, 2011, the Veteran again indicated that he wished to be granted service connection for diabetes. As this statement was within one year of the 2010 rating decision, the Board finds that it may considered as a timely notice of disagreement; thus, the 2010 rating decision is the diabetes rating decision on appeal) In February 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The record was held open for an additional 60 days to allow the Veteran to submit additional evidence if he desired. These matters were previously before the Board in May 2016 and were remanded for further development. They have now returned to the Board for further appellate consideration. The Board finds that there has been substantial compliance with its remand directives. FINDINGS OF FACT 1. The Veteran did not have herbicide exposure in service. 2. The Veteran did not have diabetes, peripheral neuropathy, prostate cancer, or hypertension which manifested to a compensable degree within one year after separation from service. 3. There is not competent credible probative evidence of record that it is as likely as not that the Veteran has diabetes, peripheral neuropathy, prostate cancer, hypertension, or a disability manifested by bone/limb pain causally related to, or aggravated by, active service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for bilateral upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 3. The criteria for service connection for bilateral lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.304, 3.307, 3.309. 5. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.304, 3.307, 3.309, 3.310. 6. The criteria for service connection a disability manifested by body/limb pain have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Initially, the Board finds that the evidence is against a finding that the Veteran was exposed to herbicide(s) in service. The Veteran did not have active service in Vietnam, Korea, or any other area which VA recognizes as having herbicide(s) and with presumed exposure by active service members. Moreover, the Veteran has not demonstrated that he is competent to identify herbicides, including those (2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram) for which presumptions of service connection may apply. 38 C.F.R. § 3.307 (a)(6). The Veteran contends that he was exposed to herbicides in Panama during jungle training (see August 2011 statement). (The Veteran asserted that he underwent jungle training in 1971/1972; however, the more probative evidence reflects that it was in 1975, and that the Veteran was not in service in 1971 or 1972.) The Veteran's military personnel records reflect that he had two weeks of service at the USARSO (United States Army South) school for JOTC (Jungle Operations Training Center) in 1975. (See DA Form 2-1, Box 17 Civilian Education and Military Schools.) In addition, the Veteran's DD 214 reflects two weeks of JOTC at the USATC (U.S. Army Training Center). A March 1975 certificate reflects that he completed the standard JOTC. The evidence does not reflect that this training was in Panama, but the Board acknowledges that the Army did maintain jungle training in Panama in the 1970s. As the Veteran was undergoing "jungle" training, it seems contrary that Agent Orange (an herbicide) would have been used to defoliate the jungle. Moreover, a May 2013 memorandum of record from the U.S. Army and Joint Services Records Research Center (JSRRC) reflects that it has not identified evidence of record that tactical herbicide, Agent Orange, was used, stored, tested, or transported within the country of Panama or the Canal Zone. The memorandum further states that this determination is confirmed by the Department of Defense listing of dates and locations of herbicide test and storage outside of Vietnam and the December 2012 report by A.L. Young Consulting, titled "Investigations into the Allegations of Agent Orange in the Canal Zone and Panama.). The memorandum states that research has produced no evidence to support the potential for exposure to Agent Orange in Panama or the Canal Zone. The claims file also includes an April 2017 VA Appeals Management Center (AMC) memorandum which reflects that the Veteran's contention of herbicide exposure has not been corroborated. The claims file includes an article "Agent Orange Tested in Panama in the 1960s and 70's" which is from 1999 and posted on the website bluewaternavy.org, which is a private veterans' activist group which asserts various ways in which veterans could have been exposed to Agent Orange. The Board finds that this is not a controlling authority and VA is therefore not bound to accept its assertions as factually true and correct. This activist group is neither affiliated with, nor officially endorsed by the United States Government, and the website of this organization presents the disclaimer that its leaders and the authors of the aforementioned article are neither physicians nor attorneys, and that they do not offer medical or legal advice. Moreover, the article is generic in nature in that it does not indicate that this Veteran himself was exposed to herbicides during service. Finally, the Board finds that the findings of the JSRRC, based on government records, are more probative than a newspaper article from more than a decade ago. In sum, the Board finds that the evidence is against a finding that the Veteran was exposed to herbicides in service. Thus, service connection under 38 C.F.R. §§ 3.307 and 3.309 for disabilities due to presumptive exposure is not warranted. The Veteran testified at the 2016 Board hearing that he left military service "early" due to illness, and that after he left Panama, "everything started happening" and that he was released from service on "unemployability or something like that" because he was sick "all the time" and no one could identify the cause (see Board hearing transcript page 8). The Board finds that the records contemporaneous to service, or shortly thereafter, are more probative than the Veteran's statements made decades later with regard to his health in service. The Veteran's service treatment records (STRs) and military service personnel records are negative for an indication that he was separated from the military because he was sick. The Veteran's DD 214 reflects that he was separated due to his failure to maintain acceptable standards for retention. His military personnel records reflect that he had a May 1975 Bar to Reenlistment based on repeated violations of the Uniform Code of Military Justice. It was noted that the Veteran "constantly is a failure to repair in regard to his arriving for duty after a weekend. While at work his performance has been average. Recently . . . [he] was apprehended by Military Police for possession of [marijuana]." His military personnel records also reflect that he was discharged under the "expeditious discharge program" due to "clearly substandard performance", "evidence of emotional maladjustment", "failure to demonstrate promotion potential", and "four article 15's for misconduct". (See July 1975 Department of Army memorandum.) The Board also notes that the Veteran's Article 15's (non-judicial punishment) pre-dated his 1975 two weeks in Panama (i.e. December 1973, February 1974, March 1974, October 1974, December 1974); thus, they are not a reflection of an illness contracted in Panama. Based on the foregoing, the Board finds that the Veteran was not discharged from service due to illness or physical disability. In sum, any statements as to herbicide exposure in service, discharge due to physical disability, and continuity of symptoms since are less than credible. Not only are the STRs negative for complaints, but there are no clinical records within one year of separation from service, and the Veteran testified that he was not aware of getting any treatment for hypertension, diabetes mellitus, or prostate cancer within one year of separation from service. (See Board hearing transcript, page 5.) In making such a credibility finding, the Board is not implying that the Veteran has any intent to deceive. Rather, the Veteran may be simply mistaken in his recollections due to the fallibility of human memory for events that occurred. Diabetes mellitus The Veteran's STRs are negative for complaints of, or treatment for, diabetes mellitus. His July 1975 Report of Medical History for separation purposes reflects that he denied sugar or albumin in his urine. His corresponding July 1975 Report of Medical Examination for separation purposes reflects that his urine was negative for albumin and/or sugar upon testing. (A January 1974 examination report is also negative for albumin and/or sugar in the urinalysis upon testing.) In September 1986, more than ten years after separation from service, a clinical record reflects that the Veteran had an elevated glucose level of 110. He had a diagnosis of exogenous obesity at the time. (His weight upon separation from service was 168 pounds). VA records reflect a diagnosis of diabetes in August 2005. A March 2010 VA record reflects that the onset date of diabetes was questionably 2000 but that the exact date is unknown. There are no clinical records which reflect that the Veteran had diabetes in service or that his diabetes manifested to a compensable degree within one year after separation from service. Even assuming that the Veteran had diabetes in 1986, this is still more than 11 years after separation. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is also no competent credible evidence of record that the Veteran's diabetes is as likely as not causally related to, or aggravated by, active service. Any statement that his diabetes is due to herbicide exposure in service lacks credibility because the most probative evidence, as noted above, is against a finding of such exposure. Peripheral neuropathy - bilateral upper extremity Peripheral neuropathy - bilateral lower extremity The Veteran's STRs are negative for complaints of, or treatment for, neuropathy. His July 1975 Report of Medical History for separation purposes reflects that he denied foot trouble, neuritis, lameness, or cramps in the leg. His corresponding July 1975 Report of Medical Examination for separation purposes reflects that his upper and lower extremities and neurologic systems were normal upon examination. (A January 1974 examination report is also negative for any findings and the Veteran reported that he was in good health.) VA records reflect that the Veteran has diabetic neuropathy (e.g. See July 2010, May 2011, and January 2012 records). As the Veteran is not in receipt of service connection for diabetes, service connection for neuropathy due to diabetes is not warranted. Moreover, there is no competent credible probative evidence of record which reflects that the Veteran's peripheral neuropathy is as likely as not causally related to, or aggravated by, active service. Prostate cancer There is no evidence in the STRs which indicates that the Veteran had complaints of, treatment for, or diagnosis of, prostate cancer in service. The Veteran was diagnosed with prostate cancer in 2011, more than three decades after separation from service. VA records also reflect that the Veteran had a family history of cancer in that both a brother and an uncle had prostate cancer, another brother had an elevated PSA, and two sisters had breast cancer. There is no competent credible probative evidence of record which reflects that the Veteran's prostate cancer is as likely as not causally related to, or aggravated by, active service. Hypertension The Veteran's STRs are negative for complaints of, treatment for, or diagnosis of hypertension. An April 1975 STR notes an elevated blood pressure reading with chest pain; however, the diagnosis upon examination was chondritis induced by strenuous activity. His Report of Medical Examination notes a blood pressure of 138/80 but no finding that this was hypertension. His July 1975 Report of Medical History for separation purposes reflects that he denied having high or low blood pressure. The record reflects that the Veteran had coronary bypass surgery in approximately 1979 or 1981, and that he was diagnosed with hypertension in 1981 (see August 1986 clinical record). In a February 2007 Tennessee Disability Determination Services record, it reflects that the Veteran was diagnosed with hypertension in 1975. However, there are no clinical records supporting this onset date, and records prior to 2007 reflect a much later onset date. The Veteran testimony is against a finding of treatment in the year after separation from service. VA records reflect a family history of heart disease in that his father died of a myocardial infarction. The clinical evidence does not reflect that the Veteran's hypertension manifested to a compensable degree within one year after separation from service. Moreover, there is no competent credible probative evidence that it is as likely as not that the Veteran's hypertension is causally related to, or aggravated by, active service. Finally, the Veteran is not in receipt of service connection for coronary artery disease, or other heart disability; thus, service connection for hypertension on a secondary basis is not warranted. Bone pain/limb pain In his August 2011 VA Form 21-4138, the Veteran contended that service connection is warranted for "bone pain which was termed: pain in limb". 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. The Veteran is already in receipt of service connection for chondromalacia of the right and left knees; thus, the Board has concentrated its review of the evidence with regard to the Veteran's other complaints. The Veteran's July 1975 Report of Medical History reflects that he reported that his present health was good. He reported a fractured left ankle in 1970 (prior to service) with no sequelae, and knee problems in service. Moreover, his STRs are negative for complaints of all-over bone/limb pain, or chronic complaints of the shoulder, hips, wrists, or ankles. Post service, the Veteran has complaints of hip pain (See e.g. SSA records, and April 2010, January 2011, August 2013, and November 2013 VA clinical records), wrist pain (April 2010 VA clinical record), back pain (January 2011 and May 2011 VA clinical records), and shoulder pain diagnosed as pain and questionable arthritis (e.g. November 2008, January 2011 VA clinical records). A July 2000 VA examination report reflects that the Veteran has osteoarthritis of the first carpal metacarpal joint of the right hand and that it is not related to an in-service 1974 injury of a laceration. With regard to the shoulder(s), a November 2008 VA clinical record reflects that the Veteran reported that he had "tripped and pull[ed] something" in his shoulder. With regard to the hips, an April 2010 record reflects that the Veteran reported left hip pain for one year. A radiology record notes a normal left hip at that time. The Veteran has also been diagnosed with carpal tunnel syndrome, with a noted first complaint in July 1996 (See November 1999 correspondence from Dr. M. Ford of Church Health Center.) The evidence does not reflect that it is as likely as not causally related to, or aggravated by, active service. A February 2007 Tennessee Disability record reflect that the Veteran reported occasional pain of the right lateral epicondyle which radiates down to the hand, and that he fractured his right ankle as a child, and had a right thigh gunshot wound in 1991. There is no competent credible evidence that any such disabilities were caused by, or aggravated by, active service. A June 2013 VA radiology record reflects as follows: Imaging demonstrates increase in activity in all the peripheral joints including the ankles and feet, both the knees, both the wrists and hands and both shoulders and also in lower lumbar spine and lower thoracic spine. All these findings are due to degenerative bone and joint disease. No other abnormalities are seen to suggest bony metastases. Impression: 1. DJD in most of the joints as described above . . . The Board acknowledges that the Veteran has DJD of many limbs; however, there is no competent credible evidence of record which reflects that the Veteran has a disability which is manifested by all over body/limb pain, or that his disabilities of DJD are as likely as not causally related to, or aggravated by, active service, or that arthritis was manifest in the first post-service year or that there has been continuity of chronic disability symptomatology since service. Conclusion The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disabilities. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to identify herbicides, and/or disease(s) with a family history, and/or diseases with manifested decades after separation from service. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, any clinical opinion based on an unsupported history of herbicide exposure in service lacks probative value. In addition, any opinion based on continuity of symptoms since service lacks probative value because the records contemporaneous to service are against a finding of complaints upon separation. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is denied. Entitlement to service connection for bilateral lower extremity peripheral neuropathy is denied. Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for hypertension, to include as secondary to as secondary to coronary (heart) disease, is denied. Entitlement to service connection for a disability manifested by bone and/or limb pain of the body is denied. ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs