Citation Nr: 1701253 Decision Date: 01/17/17 Archive Date: 01/27/17 DOCKET NO. 10-12 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for Type II Diabetes Mellitus, including due to exposure to Agent Orange. 2. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities secondary to the Type II Diabetes Mellitus. 3. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Connie M. Thornburg, Agent WITNESS AT HEARING ON APPEAL The Appellant-Veteran ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to December 1971 and from March 1972 to June 1977. This appeal to the Board of Veterans' Appeals (Board/BVA) is from September 2008 (low back) and May 2009 (diabetes mellitus and peripheral neuropathy) rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a videoconference hearing before the undersigned in April 2012. A transcript of the proceeding is of record. The Board since has remanded these claims to the Agency of Original Jurisdiction (AOJ) for further development and consideration - initially in September 2012, again in January 2014, and most recently in March 2016 to obtain all outstanding records of relevant evaluation and treatment, including private medical records from the Social Security Administration (SSA), also to try and verify the Veteran's alleged temporary duty service (TDY) in Vietnam and/or exposure to herbicides in Thailand, and lastly to have him undergo a VA compensation examination for a necessary medical nexus opinion. Regrettably, even more development is required concerning the claims for diabetes mellitus and associated peripheral neuropathy of the upper and lower extremities. However, the Board is going ahead and deciding the remaining claim for a low back disorder. FINDING OF FACT The Veteran's low back disorder, including the arthritis, initially manifested many years after conclusion of his military service and is not shown to be related or attributable to his service. CONCLUSION OF LAW Service connection for a low back disorder is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act (VCAA) The VCAA, in part, enhanced VA's duties to notify and assist claimants in substantiating claims for VA benefits upon receipt of a complete or substantially complete application. 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). This duty to notify was satisfied by way of an April 2008 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As regarding the additional obligation to assist him in fully developing his claim, the Veteran's service treatment records (STRs) and post-service VA, SSA and private medical records have been obtained. He also was afforded a VA compensation examination for a needed medical nexus opinion to assist in determining the etiology of his low back disorder, particularly in terms of its purported relationship with his military service. VA's duty to assist him with his claim, therefore, has been met. The Veteran also, as mentioned, had a videoconference hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Veterans Court/CAVC) held that 38 C.F.R. § 3.103(c)(2) requires that an RO official or presiding Veterans Law Judge (VLJ) of the Board conducting a hearing fulfill two duties: (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked if potentially favorable to the claim. During the April 2012 videoconference hearing, to this end, the undersigned identified the issue and advised the Veteran of the type of evidence and information still needed to substantiate this claim (namely, evidence of a correlation ("nexus") between his disorder being claimed and his military service to, in turn, show it is a service-connected disability). A deficiency in the conduct of the hearing is not alleged, much less otherwise shown. Factual Background, Legal Criteria and Analysis In deciding this claim, the Board has reviewed all of the evidence in the Veteran's electronic (i.e., paperless) file. Although the Board is required to provide reasons and bases supporting this decision, there is no need to discuss each item of evidence in the record. Hence, the Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The STRs show the Veteran denied recurrent back pain in a November 1971 report of medical history. His spine also was described as normal during his contemporaneous November 1971 military separation examination. His first period of service ended a short time later, in December 1971. The Veteran rather immediately re-entered service and, consequently, subsequently was on active duty from March 1972 to June 1977. The Veteran submitted a claim for service connection relatively shortly after that, in January 1978, but there was no mention or reference to a low back disorder of any sort, including especially owing to his military service (either period). Private medical records show that a small disc herniation of L5-S1 was noted on magnetic resonance imaging (MRI) of the Veteran's lumbar spine in January 1997, so some 19 years later. It was noted in October 1997 that, just one year earlier, he fell at work and injured his left foot and ankle. After conservative management of his foot fractures, he was found to have associated low back and lumbar disc disease. The impression was history of low back pain. He was seen for re-evaluation of chronic low back and left leg pain in July 1999. It was reported that he originally had been seen in January 1997 following an injury in October 1996 in which he stepped into a drain while working and broke his left foot and injured his back in a subsequent twisting fall. The assessment at that time was internal disc disruption with left lumbar radiation and bilateral sacroiliac joint pain. The assessment in July 1999 was chronic low back pain secondary to a twisting lower back injury more than two years ago. A VA examination of the spine was done in January 2013. The Veteran stated he began having low back pain while in service. He reported that he was never treated during service for the back condition, but recounted several times when he experienced back pain. He recalled exercises in which he was required to carry people as part of his training. He treated himself with rest and a heat pad. He related that the back pain progressed following service. He acknowledged that it was not until the 1990's that degenerative disc disease (DDD) was diagnosed. The examiner indicated the Veteran had arthritis. The diagnosis was DDD of the lumbar spine. Regarding etiology, however, the examiner opined that it was less likely than not the Veteran's low back disability was related to or caused by his military service. In explanation, the examiner pointed out that all the objective evidence showed the Veteran's low back disability was quite mild and was very consistent with his age. The examiner observed that this evidence included imaging data and the physical examination. The examiner also stated that the condition was most likely due to the Veteran's age and the physical nature of his post-service occupations and obesity. The examiner added that the medical evidence disclosed that the initial onset of the low back condition was most likely in the 1990's and that, if the service were a factor, based on the objective data, its severity would be far worse. Service connection is granted for disability resulting from a disease or an injury incurred in or aggravated by active military service in the line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing entitlement to service connection generally requires having probative (competent and credible) evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or an injury in service; and (3) a correlation ("nexus") between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Certain chronic diseases (including arthritis) may be service connected on a presumptive basis if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a specified period of time post service (one year for arthritis). 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection also may be granted for these chronic diseases by showing continuity of symptoms since service under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). During the videoconference hearing before the undersigned in April 2012, the Veteran testified that his duties as a firefighter in service involved picking up heavy weights and that he dealt with the consequent pain as best he could. He reported seeking treatment for his low back within six months of his separation from service, and that he has required continuous treatment for it since. The STRs from the Veteran's first period of service are entirely unremarkable for complaints or findings referable to his low back. He denied having back pain in November 1971, and clinical evaluation of his spine during his discharge examination at that time was grossly normal. The available STRs from his second period of service also do not show any complaints or treatment for problems or issues with his low back. This is consistent with his acknowledgement during his January 2013 VA compensation examination of his spine that he did not complain about or seek any treatment for low back problems during his service. While he testified during his hearing that, that notwithstanding, he sought treatment for his low back shortly after service, the Board considers it significant that he did not reference any back problems or issues when filing his initial claim for service-connected disability compensation in January 1978. And while it's true he was under no obligation to mention low back disability when filing that initial claim, the fact that he did not (but now claims he had low back disability even then) is one of the reasons for the Board to question whether he actually did. In the appropriate circumstance, VA may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). Something else equally deserving of mention is that the Veteran apparently more recently injured his low back at work, so at his civilian job, in October 1996 or thereabouts. He described this post-service ("intercurrent") injury in July 1999 and did not mention any prior low back injury (especially during his time in service) or consequent problems or issues. Indeed, the examiner in July 1999 attributed the Veteran's then current low back disability to the 1996 injury, not instead to anything that had occurred during his military service many years earlier. The only medical opinion of record is contained in the January 2013 VA examination report. This VA examiner was charged with specifically addressing this determinative issue of causation, so he reviewed the record and concluded that it was less likely than not the Veteran's low back disability is the result of his military service. In explanation, this examiner noted that the findings were consistent with the Veteran's age and that the evidence disclosed that the condition had incepted during the 1990's. He also attributed the low back disorder to the physical nature of the Veteran's jobs after service and to the fact that he was obese. That VA examiner, therefore, provided the required supporting rationale, which is where most of the probative value of a medical opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-04 (2008). The Veteran's contrary opinion that his low back disorder is related or attributable to his service is not competent evidence. Compare and contrast 38 C.F.R. § 3.159(a)(1) and (a)(2), defining competent medical versus lay evidence. He is a layman and, therefore, is not competent to provide a probative opinion on something that is a medical question beyond the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428 (2011) (explaining this is a fact-specific, case-by-case, determination). See also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (differentiating between conditions that are simple versus medically complex). There is no competent evidence showing or otherwise suggesting the Veteran's low back disorder, which was first documented many years after conclusion of his service, is nonetheless the result of his service. See 38 C.F.R. § 3.303(d). The evidence does not establish the Veteran was diagnosed with a low back disorder during his service or even for many years thereafter, and arthritis of the low back also first manifested many years following conclusion of his service, well beyond termination of the one-year presumptive period. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Thus, there is no basis for granting service connection either on a direct or presumptive basis. The evidence also does not suggest the Veteran has had continuous symptoms referable to his low back since his discharge from military service, and this continuity-of-symptomatology option for establishing entitlement to service connection also is first predicated on there having been some notation during service of the condition now being claimed. 38 C.F.R. § 3.303(b). Here, though, there was none; the condition was not first "noted" in service (in fact, to the contrary, not noted at all in service). Thus, service connection is not warranted based on continuity of symptomatology since service. There equally as mentioned is no competent and credible evidence that his current low back disability is otherwise related to his service to, in turn, invoke consideration of 38 C.F.R. § 3.303(d). In summary, for these reasons and bases, the preponderance of the evidence is against the claim, so it must be denied. See 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (finding that Congress mandated by statute that the Board provide a written statement of reasons or bases for its conclusions that is adequate to enable the appellant to understand the precise basis for the Board's decision and to facilitate review in this Court). ORDER Service connection for a low back disorder is denied. REMAND The Veteran also is claiming entitlement to service connection for Type II Diabetes Mellitus on the basis of exposure to Agent Orange during his service. Certain conditions, including Type II Diabetes Mellitus, will be presumed to have been incurred in service in this circumstance. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). He also argues that the peripheral neuropathy of his upper and lower extremities is a complication of the diabetes, so secondarily related to his service and therefore also service connected. See 38 C.F.R. § 3.310(a) and (b). Service personnel records (SPRs) show the Veteran was stationed in Thailand from August 1969 to September 1970. He was assigned to the 631st combat support group, Don Muang Airport, as a firefighter and driver/operator. Performance reports for this period do not mention that he flew to Vietnam, including on a TDY. Of record is an historical brief pertaining to the Don Muang air base. It was noted that the 631st combat support group was stationed there, and that its primary mission was to provide support for all U.S. Air Force units and detachments assigned to the base or other bases in Thailand. VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam Era. See VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 1, Section H (updated August. 7, 2015) (formerly M21-1MR, part IV, Subpart ii, Ch. 2, Section C-10-q) ("M21-1MR"). VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. Claims involving alleged exposure at such an installation are to be analyzed under the appropriate administrative guidelines given the absence of pertinent statutory and regulatory provisions. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). According to these guidelines, exposure will be conceded for certain veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam era. See VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ("M21-1MR"), developed in response to a May 2010 Compensation and Pension (C&P) Service Bulletin (VA determined there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes). Such veterans include those who were stationed at the Royal Thai Air Force bases in U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang and who served in a position or military occupational specialty (MOS) that required duty on the base perimeter, such as security police or dog handler, etc. M21-1MR, Part IV.ii.2.C.10.q (January 15, 2013). According to the bulletin, along with air bases, there were some small Army installations established in Thailand during this period, which may also have used perimeter herbicides in the same manner as the air bases. Therefore, if a U.S. Army Veteran claimed disability based on herbicide exposure and the Veteran was a member of a military police (MP) unit or was assigned an MP MOS that required duty at or near the base perimeter, then herbicide exposure on a facts found or direct basis is to be acknowledged. Unfortunately, this Veteran does not have the requisite MOS or unit assignment to concede herbicide exposure based on these provisions. In this circumstance, the remaining steps outlined in the relevant manual include: placing in the Veteran's claims file a copy of C&P's Memorandum for the Record (Memorandum); asking the Veteran for the approximate dates, locations and nature of the alleged exposure; determining whether the Veteran furnished the requested information; reviewing the Veteran's information in conjunction with the memorandum; determining whether the exposure may be acknowledged; and, if not, referring the case to the Joint Services Records Research Center (JSRRC) for a formal finding on the matter. M21-1MR, Part IV.ii.2.C.10.q. A September 2013 memorandum from the JSRRC concluded that, based on a review of the Veteran's record, to include SPRs, exposure to herbicides on a presumptive basis could not be conceded. It was indicated that it was unlikely that the Veteran's MOS (firefighter and driver/operator) would have required him to fly on C130's and Medevac missions to Vietnam. In addition, even if he did support such efforts, it was unlikely he would have been exposed to environments beyond an airport where the use of herbicides was high, like that of the forests of Vietnam. But there is no indication the JSRRC addressed any possible herbicide exposure the Veteran might have had while stationed at Don Muang Airport in Thailand. Accordingly, the claim is REMANDED for the following additional development and consideration: 1. File a copy of the Compensation Service's Memorandum of Record regarding general herbicide use in Thailand during the Vietnam Era in the Veteran's record. 3. Contact the Veteran and request that he provide information concerning his exposure to herbicides while he was stationed in Thailand. He should specify the date, location and nature of the alleged exposure. 3. Send another request to the JSRRC attempting to determine whether the Veteran was exposed to herbicides during his time in Thailand based on any additional information submitted by him. The JSRRC should address whether he was exposed to herbicides while stationed at Don Muong Airbase from August 1969 to September 1970. He was assigned to the 631st combat support group, Don Muang Airport, as a firefighter and driver/operator. 4. Then make a formal finding for the record concerning whether the Veteran was exposed to Agent Orange while serving in Thailand (as opposed to just in Vietnam). 5. Lastly, readjudicate these diabetes and peripheral neuropathy claims in light of this and all other additional evidence. If these claims continue to be denied, send the Veteran and his representative another Supplemental Statement of the Case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B , 7112 (West 2014). ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs