Citation Nr: 1760468 Decision Date: 12/27/17 Archive Date: 01/02/18 DOCKET NO. 05-20 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the right upper extremity, including as secondary to exposure to herbicide agents. 2. Entitlement to service connection for peripheral neuropathy of the left upper extremity, including as secondary to exposure to herbicide agents. 3. Entitlement to service connection for kidney stones, including as secondary to exposure to herbicide agents. 4. Entitlement to service connection for sinusitis and/or allergic rhinitis, including as secondary to exposure to herbicide agents. 5. Entitlement to service connection for residuals of a left index finger injury, including as secondary to exposure to herbicide agents. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to July 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in September 2004, August 2005, May 2009, and February 2015 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In its September 2004 decision, the Agency of Original Jurisdiction (AOJ), inter alia, denied entitlement to service connection for sinusitis/allergic rhinitis. In its August 2005 decision, the AOJ denied entitlement to service connection for a low back disorder. The issues of entitlement to service connection for sinusitis/allergic rhinitis and a low back disorder were previously before the Board in June 2007. At that time, the Board denied the Veteran's claims for entitlement to service connection. The Veteran appealed the Board's June 2007 decision to the United States Court of Appeals for Veterans Claims (Court), and in a January 2010 memorandum decision, the Court vacated the Board's decision and remanded the case to the Board for action consistent with the memorandum decision. In May 2009, the AOJ also denied entitlement to service connection for residuals of a left index finger injury. The Veteran appeared before a Decision Review Officer for a hearing in July 2010 regarding the low back claim. At the time, the Veteran also confirmed that he claimed service connection for kidney stones. A transcript of the proceeding is of record. In February 2011, the Board, inter alia, remanded the issues of service connection for sinusitis/allergic rhinitis, left index finger disability, and a low back disorder for additional development in accordance with the Court's January 2010 memorandum decision. While on remand, in a February 2015 rating decision, the AOJ denied service connection for bilateral peripheral neuropathy of the upper extremities and declined to reopen a previously denied claim for kidney stones. In a May 2017 decision, the Board determined that the January 2010 rating decision did not become final and the claim for service connection for kidney stones remained pending. As such, the adjudication in February 2015 related back to that original, pending claim and the appropriate characterization of the claim is one for service connection, not a request to reopen. See Beraud v. McDonald, 766 F.3d 1402, and 1406-07 (Fed. Cir. 2014). In March 2016, the Board remanded the claims for further development. In a September 2017 rating decision, the Appeals Management Center (AMC) granted service connection for lumbosacral strain and assigned a 10 percent rating from June 10, 2005; and a 20 percent rating from March 31, 2017. The issues of entitlement to service connection for sinusitis/allergic rhinitis and residuals of a left index finger injury are addressed in the REMAND portion of the decision below and REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran did not serve in Vietnam. 2. The Veteran served in Thailand with a military occupational specialty of airframe repairman. 3. The Veteran's duties in Thailand do not permit VA to presume that he was exposed to herbicides to include Agent Orange (AO). 4. Peripheral neuropathy of the upper extremities was not shown in service and is not otherwise related to service. 5. Kidney stones were not shown in service and are not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the right upper extremity, including as secondary to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R§§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for peripheral neuropathy of the left upper extremity, including as secondary to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R§§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for kidney stones, including as secondary to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R§§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). If a Veteran was exposed to an "herbicide agent," such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases will be service-connected even if there is no in-service record of the disease in service. 38 C.F.R. § 3.307 (a)(6),(d), 3.309(e). VA has extended the presumption of service connection for diseases listed under 3.309(e) to Veterans who served in Korea in or near the demilitarized zone (DMZ) between April 1, 1968, and August 31, 1971, or in Thailand at certain designated bases and whose duties placed him on or near the perimeter of the base, where Agent Orange was sprayed. 38 C.F.R. § 3.307I (a)(6)((iv); see also Compensation and Pension Bulletin, New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea, 3 (May 2010); M21-1MR, Part IV, Subpart ii, Ch. 2, Section C, Paragraph 10, Subsection (p). A lay person is competent to report the onset and continuity of his symptomatology. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a lay person, (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, 1376-77 (Fed. Cir. 2007). The Board must determine on a case-by-case basis whether a particular disability is the type of disability that is within the competence of a lay person. See Kahana, 24 Vet. App. at 433, n. 4. A Veteran bears the burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107 (b)). The Veteran's medical records indicate he was diagnosed with kidney stones in September 2008 and peripheral neuropathy of the upper extremities in February 2014. The Veteran contends that he was exposed to herbicides (i.e. Agent Orange) while serving in Thailand. His personnel file (DA Form 20), shows that he served as an airframe repairman at the Ubon RTAFB (Royal Thai Air Force Base) between January 1967 and January 1968. He served in the CZ (Panama Canal Zone) between January 1968 and July 1969. In February 2006 correspondence, the Veteran claimed that Ubon RTAFB was sprayed with Agent Orange to remove foliage prior to bulldozing trees. He said that he repaired and boarded a C-130, which he was later told that was used to spray Agent Orange. His service personnel records reveal that his MOS was an airframe repairman with primary duties placing him in the vicinity of the flight line. The Veteran does not allege he served in Vietnam or that his daily activities caused him to be near the perimeters of the Air Force base while in Thailand. In a letter from the U.S. Armed Services Center for Unit Records Research (now the U.S. Army and Joint Services Records Research Center (JSRRC)), dated in April 2004, that agency reported research showed that herbicides were not sprayed near U.S. personnel in Thailand, and that they were only sprayed in Thailand for test purposes in the early and mid-1960s in remote jungle, areas. The letter further states, "We were unable to locate documentation showing the military's use, testing, or storage of herbicides in the Canal Zone, Republic of Panama. Furthermore, the submitted articles indicate that the military sprayed and stored herbicides in the area of Bor Fai airport, near the resort of Hua Bin, about two years prior to the veteran's service in Thailand. They do not show that Ubon, Thailand, was ever sprayed with, or used to store, herbicides. They do not indicate that Bor Fai/Hua Hin is in close proximity to Ubon, nor do they show any relevant relationship between Ubon and Bor Fai/HuaHin. In addition, the service department has been unable to confirm his claim that he was exposed to herbicides during service in Thailand, nor do they give any basis to assume such exposure during service in either Thailand or the Canal Zone. A VA memorandum regarding herbicide use in Thailand during the Vietnam Era was placed in the Veteran's claims folder. This memorandum shows that the Department of Defense's list of facilities indicated that only limited testing of tactical herbicides was conducted in Thailand from April 2, 1964 to September 8, 1964. The memorandum also indicated there was a record of 17 insecticide missions which involved the spraying of Malathion insecticide to control malaria carrying insects in Thailand on limited dates in 1963 and 1966. Notably, the Veteran did not serve in Thailand until January 1967, after the time period in which such herbicides were used. Furthermore, the memorandum indicates that tactical herbicides, such as Agent Orange, were not stored in Thailand. The memorandum indicated the facts were not sufficient to establish tactical herbicide exposure for any Veteran based solely on service in Thailand. The memorandum also stated that there was sporadic use of non-tactical (commercial) herbicides within fenced perimeters, and if a veteran's military occupational specialty included contact with base perimeters, there was a greater likelihood of exposure. However, the Veteran's statements regarding his service in Thailand did not indicate he was frequently near the perimeters of the base. As a result, the planes on which the Veteran performed maintenance were not the UC-123 aircraft that sprayed tactical herbicides, such as AO, in Vietnam, and the planes he did service were not likely to have exposure to tactical herbicides. Finally, the memorandum indicates that tactical herbicides were aerially applied in Vietnam by UC-123 aircraft, and that these aircraft were stationed in Vietnam, not Thailand. The memorandum further indicated it is inaccurate to think that herbicides covered every aircraft and piece of equipment associated with Vietnam, and the high altitude jet aircraft stationed in Thailand generally flew far above the low and slow flying UC-123 aircraft that sprayed tactical agents in Vietnam. The Veteran does not contend that he had any service in Vietnam and no such service is shown. Therefore, he is not presumed to have been exposed to an herbicide due to service in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307 (a)(6)(ii), 3.309. Finally, the planes on which the Veteran performed maintenance did not spray tactical herbicides, such as AO, and were not likely to have had exposure to any tactical herbicides. As such, entitlement to service connection for peripheral neuropathy of the bilateral upper extremities and kidney stones may not be established based on presumed exposure to herbicides resulting from service in Vietnam. The Board thus finds that the evidence of record preponderates against establishing that the Veteran was exposed to Agent Orange during his service in Thailand. The evidence shows that the occupational specialties listed as having presumed exposure to herbicides in Thailand were those service members whose duties included actually walking the perimeter of the airbases. The Veteran's description of his duties and the official duty record do not place him on or near the perimeter of the base. There is no corroboration that the facility where he performed his duties was adjacent to the perimeter. As to the Veteran's contnention thathe had herbicide exposure in Thailand, the Board finds that it is outweighed by the more probative evidence to the contrary. 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). As such, the Board cannot concede exposure to herbicides/Agent Orange for duty at Ubon, Thailand air bases as an airframe repairman. In addition, there is no competent evidence that the claimed disabilities are due to herbicide exposure. While there is a presumption of service connection for early onset peripheral neuropathy occurring in herbicide exposed veterans; the Veteran's disability was identified decades after service and there is no other evidence that it was of early onset. Cf. 38 C.F.R. § 3.309(e). There is no presumption of service connection for kidney stones based on herbicide exposure. Service connection could still be established with evidence of direct service connection, but the only evidence of a direct link between the claimed disabilities and in-service herbicide exposure is the Veteran's contention to that effect. Therefore, given the foregoing, the Board finds that the evidence as a whole outweighs the Veteran's contentions to the effect that polyneuropathy of the bilateral upper extremities and kidney stones were caused by exposure to herbicides in service. The effects of herbicide exposure and the remote causes of peripheral neuropathy and kidney stones are complex medical and scientific questions. See 38 U.S.C. § 1116 (providing elaborate scientific procedures for establishing presumptons of service connection based on herbicide exposure). Service treatment records including the May 1969 report of medical history and examination are negative for any complaints treatment or diagnoses related to peripheral neuropathy of the bilateral upper extremities and kidney stones. VA treatment records include electrodiagnostic evidence confirming that the Veteran has bilateral upper extremity neuropathy. See e.g. February and April 2014 VA treatment records. The April 2014 VA treatment record also indicated that the Veteran would undergo a workup for potential medical causes of polyneuropathy and recorded the Veteran's statement that he remembered being told in 1982 that he had carpal tunnel syndrome. VA treatment records dated in March 2003 noted the Veteran's complaints of low back pain for approximately nine months with a feeling of pain he described similar to a kidney infection. Radiographs revealed large left renal pelvic stone. Subsequent treatment records show ongoing treatment for kidney stones. A September 2009 record noted a history of a kidney infection six years ago. The Veteran was afforded a VA peripheral nerves conditions disability benefits questionnaire (DBQ) examination in June 2017. The Veteran was diagnosed with carpal tunnel syndrome since 2014. The examiner noted that at the time of the Veteran's EMG/NCS testing in 2014, he reported, "I used to have carpal tunnel back in 1982." The examiner stated that there was no medical documentation to support the Veteran's reported history of a diagnosis of carpal tunnel syndrome since 1982. The examiner explained that at the time of the EMG/NCS testing in 2014, the Veteran stated that he had a one year history of progressively worsening wrist condition. The examiner added that the Veteran's report of history is insufficient to support his claim of carpal tunnel syndrome back to service as there were no treatment records or nexus of information to support this claim. The examiner opined that it was less likely as not that the Veteran's bilateral carpal tunnel syndrome diagnosed in 2014 started during service from 1965-1969. The examiner reasoned that a physician is able to diagnose a patient with physical examination and supportive studies at any time if a patient reports the complaints with corroborating sign and symptoms. Therefore, if there are no reported complaints from 1965 until 2014, then no physician could or would rely on speculation to retrospectively diagnose a Veteran because of the following statement, "The absence of supporting treatment records is not, by itself, a legally sufficient reason for rejecting the Veteran's reports." The examiner further explained that the Veteran's history that he reported a condition has not been rejected, but the retrospective diagnosis of a disease is not possible without some accepted methodology of diagnosis. The Veteran's speculation about a past illness is not an accepted methodology to establish a medical diagnosis. As noted above, the requirement for a current disability is present. However, the Veteran's service treatment records are silent for any diagnosis or symptoms of polyneuropathy of the bilateral upper extremities and kidney stones. Additionally, he has not reported, and the evidence does not otherwise show a continuity of symptomatology. There is no other competent evidence of a nexus between the post-service diagnosis of bilateral polyneuropathy of the bilateral upper extremities and kidney stones and the Veteran's service. Absent these requirements, service connection cannot be granted on a direct basis. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence on any aforementioned theory of entitlement. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, the claim must be denied. ORDER Entitlement to service connection for peripheral neuropathy of the right upper extremity, including as secondary to exposure to herbicide agents, is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity, including as secondary to exposure to herbicide agents, is denied. Entitlement to service connection for kidney stones, including as secondary to exposure to herbicide agents, is denied. REMAND In a January 2010 Memorandum Decision, the Court found that the Veteran's service treatment records showed treatment for sinusitis/allergic rhinitis form 1967 through 1969; an Agent Orange protocol examination showed a definite diagnosis of allergic rhinitis, while a VA treatment record from 2003 indicated that the Veteran engaged in self-treatment for sinusitis and infections; and the Veteran maintained that he continued to have sinusitis/allergic rhinitis, therefore a VA examination was necessary to determine whether the Veteran has sinusitis/allergic rhinitis and whether a nexus exists between the alleged disability and the Veteran's service. As a result the claim was remanded to afford the Veteran with a VA examination. In May 2017, the VA examiner essentially found that the Veteran's sinusitis/allergic rhinitis were not related to a history of sinusitis reported on the in-service report of medical examination. The examiner appeared to base this opinion on finding that the Veteran did not currently have sinusitis/allergic rhinitis and that his sinusitis/allergic rhinitis pre-existed service without any sequela. However, a review of the Veteran's service treatment records shows that, upon entry into service, the Veteran reported having a history of sinusitis, but examination of the ears, sinuses, nose, and throat was normal. Additionally, the Veteran's service treatment records show that he was treated for a sore throat in January 1966, February 1966, August 1968, and March 1969; a sore throat with headache in March 1966; allergic rhinitis in May 1967 and June 1968; sinus problems in December 1968; and a throat infection in May 1969. Finally, these records reveal that, at the time of his separation examination in May 1969, the Veteran again reported having a history of sinusitis, and the examiner noted that the Veteran had experienced mild sinusitis since 1964, which had been treated with antihistamine, with no complications and no sequelae; of note, however, a May 1969 examination of the Veteran's ears, sinuses, nose, and throat was again normal. In this regard, the Board points out that, although the Veteran reported having a history of sinusitis at the time of his entry into service, insofar as examination of the ears, sinuses, nose, and throat was normal at the time of his entry into service, the Veteran is entitled to the presumption of soundness with respect to this disability. 38 U.S.C. § 1111 (West 2002); 38 C.F.R. § 3.304 (b) (2017). The examiner appeared to disregard intermittent post-service reports of sinusitis/allergic rhinitis. As it appears that the May 2017 VA opinion was based on an incomplete medical history, a new opinion is necessary. When the case was remanded in March 2017, the Board instructed, among other things, that an examiner identify all left index finger disabilities found to be present since January 2009, or shortly before. Although the May 2017 VA examiner indicated that the Veteran did not have a current left index finger disability, the examiner failed to consider x-ray findings in the Veteran's VA treatment records dated on December 23, 2008, documenting osteoporosis and moderate distal index finger soft tissue swelling. As it appears that the May 2017 VA opinion was based on an incomplete medical history, a new opinion is necessary. On remand, any outstanding and relevant VA treatment records should be obtained and associated with the file on remand. 38 C.F.R. § 3.159 (c)(2); Bell v. Derwinksi, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should also obtain any outstanding VA treatment records, specifically those relating to left shoulder condition. All efforts to obtain these records must be documented in the claims file. 2. After obtaining available outstanding records, addendum opinions should be obtained from the examiner who examined the Veteran in May 2017 regarding the claim for the sinusitis/allergic rhinitis. The electronic claims file, including this remand, must be reviewed by the examiner. If the May 2017 VA examiner is not available, seek an addendum opinion from an appropriate medical professional. The Board leaves it to the discretion of the examiner selected to offer the addendum opinions to determine whether an in-person examination is necessary. The examiner should address the following with respect to the claimed sinusitis/allergic rhinitis. a. Identify all sinus and/or allergy disorders found to be present since the Veteran filed his claim in January 2004, or shortly before. The examiner must address diagnoses of sinusitis and allergic rhinitis already of record. The requirement for a current disability is met even if the disability resolved during the pendency of the appeal. b. For each such disability found, even if the disability has resolved, offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability had its clinical onset during active service or is related to any in-service disease, event, or injury. In doing so, the examiner should address service treatment records regarding sinus and rhinitis symptoms. The examiner should specifically acknowledge and consider the fact that an examination of the Veteran's ears, sinuses, nose, and throat was normal at the time of his entrance into service (and is considered to be in sound condition at the time of entrance into service); he was treated for a sore throat in January 1966, February 1966, August 1968, and March 1969; he was treated for a sore throat with headache in March 1966; he was treated for allergic rhinitis in May 1967 and June 1968; he was treated for sinus problems in December 1968; he was treated for a throat infection in May 1969; at the time of his separation examination in May 1969, the examiner noted that the Veteran had experienced mild sinusitis since 1964, which had been treated with antihistamine, with no complications and no sequelae; and that an examination of the Veteran's ears, sinuses, nose, and throat in May 1969 was again normal. Post service, at the time of a January 1994 Agent Orange protocol examination, the Veteran was noted to have a definite diagnosis of allergic rhinitis. Further, during VA treatment in November 2003, the Veteran reported that he had self-treated numerous episodes of sinusitis with colloidal silver. The examiner should also specifically acknowledge and consider the Veteran's prior reports of a continuity of symptomatology. c. Provide reasons for all opinions. d. The examiner is advised that the Veteran, is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 3. After obtaining available outstanding records, addendum opinions should be obtained from the examiner who examined the Veteran in May 2017 regarding the claim for left index finger disorder. The electronic claims file, including this remand, must be reviewed by the examiner. If the May 2017 VA examiner is not available, seek an addendum opinion from an appropriate medical professional. The Board leaves it to the discretion of the examiner selected to offer the addendum opinions to determine whether an in-person examination is necessary. The examiner should address the following with respect to the claimed left index finger disorder: a. Identify all left index finger disabilities found to be present since January 2009, or shortly before. The examiner must address VA x-ray findings of osteoporosis and moderate distal index finger soft tissue swelling on December 23, 2008. The requirement for a current disability is met even if the disability resolved during the pendency of the appeal. b. For each such disability found, even if the disability has resolved, offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability had its clinical onset during active service or is related to any in-service disease, event, or injury. c. Provide reasons for all opinions. d. The examiner is advised that the Veteran, is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 4. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. 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 2014). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs