Citation Nr: 1801283 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-07 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for chronic lymphocytic leukemia (CLL). 2. Entitlement to service connection for chronic disability manifested by recurrent sinus infections, to include as secondary to CLL. 3. Entitlement to service connection for chronic disability manifested by recurrent ear infections, to include as secondary to CLL. 4. Entitlement to service connection for shingles, to include as secondary to CLL. REPRESENTATION The Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Galante, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1970 to January 1972, including service in the Republic of Korea. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. These matters were last before the Board in September 2015, at which time the claims were remanded for further evidentiary development. Specifically, the RO was instructed to contact the Joint Services Records Research Center (JSRRC) or other appropriate government records repositories, and attempt to verify the Veteran's report of herbicide agent exposure near the demilitarized zone (DMZ) in Korea in 1971. Review of the electronic claims file shows there has been substantial compliance with the Board's September 2015 remand directives, and the Board may proceed with appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's unit was not present in or near the Korean DMZ and, therefore, he is not presumed to have been exposed to herbicide agents; he was not otherwise directly exposed to herbicide agents. 2. CLL was not present during active duty service, is not shown to be causally or etiologically related to any disease or injury incurred during active duty service, and did not manifest to a compensable degree within one year of the Veteran's discharge from active duty service. 3. The Veteran's sinus infections, ear infections, and shingles are not causally related to a service-connected disability, and have not been shown by competent and credible evidence to be etiologically related to the Veteran's active duty service. CONCLUSIONS OF LAW 1. CLL was not incurred in service. 38 U.S.C. §§ 1110, 1112, 1113, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. A chronic disability manifested by recurrent sinus infections was not incurred in service nor is it secondary to a service-connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. A chronic disability manifested by recurrent ear infections was not incurred in service nor is it secondary to a service-connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 4. Shingles were not incurred in service nor is it secondary to a service-connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). CLL is a chronic disease under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and chronic diseases, to include CLL, become manifest to a degree of 10 percent or more within one year after the date of separation from 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 U.S.C. § 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least ninety days, during the period beginning on April 1, 1968 and ending on August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied. 38 C.F.R. §§ 3.307, 3.309. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the foregoing presumption provisions for herbicide agent exposure, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In the context of claims for secondary service connection under 38 C.F.R. § 3.310, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to (caused by) the service-connected disability or disabilities on the other. Buckley v. West, 12 Vet. App. 76, 84 (1998); Wallin v. West, 11 Vet. App. 509 (1998). Secondary service connection may also be warranted for a nonservice-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service Connection for CLL The Veteran has alleged that he developed CLL based on exposure to herbicide agents while on active duty. In this case, he does not allege that he served in the Republic of Vietnam; rather, he maintains that he was exposed to herbicide agents while stationed near the Korean DMZ during 1971. VA recognizes that herbicide agents were used along the DMZ in Korea between April 1, 1968, and August 31, 1971, and exposure to herbicides will be conceded if a veteran was assigned to a specified unit (as determined by the Department of Defense (DoD)) who served in the DMZ region during that timeframe. 38 C.F.R. § 3.307(a)(6)(iv). Service personnel records document that the Veteran served in Korea from December 1970 to January 1972, during the period of time set forth in the regulation; however, his unit is not one of the units determined by the DoD to have operated in the DMZ during this time period. See VA Adjudication Procedures Manual (M21-1) part IV, subpt. ii, ch. 1, sec. H.4. This conclusion is further supported by additional evidence in the Veteran's service treatment records, which show he was consistently seen for treatment throughout 1971 at medical facilities in and around Seoul, Korea, which is not located in sufficient proximity to the Korean DMZ for the purposes of presumptive service connection. Therefore, as the evidence of record does not reflect that the Veteran served in one of the units determined to have operated in the DMZ, in-service exposure to herbicide agents cannot be conceded. As such, service connection for CLL cannot be granted as presumptively associated with in-service exposure to herbicide agents. Next, the Board turns to whether the Veteran is eligible for entitlement to service connection for CLL under the presumptive service connection provisions of 38 C.F.R. §3.307(b) and 3.309(a). As stated, CLL is one of the chronic diseases listed under 38 C.F.R. 3.309(a) eligible for presumptive service connection consideration. After a full review of the record, the Veteran is not entitled to presumptive service connection under these provisions. Initially, CLL was not shown during service nor has the Veteran so contended. Review of the service treatment records fails to show complaints of, treatment for, or diagnosis of CLL in service or within one year of his separation from active duty service. Indeed, he acknowledges that he was not diagnosed with CLL until 2002, a contention that is supported by his post-service medical records. Based on these considerations, the evidence does not support presumptive service connection for CLL under 38 C.F.R. 3.303(b) or 3.309(a). Next, the Veteran argued that the February 2014 Statement of the Case (SOC) misinterpreted the presumptive service connection provisions. It appears that the RO's statements that CLL was not diagnosed in service and was not manifested to a compensable degree within one year of his 1972 discharge was addressing presumptive service connection for chronic diseases pursuant to 38 C.F.R. §§ 3.303(b) and 3.309(a), and not the herbicide agent presumption of 38 C.F.R. §§ 3.307(a)(6)(iv) and 3.309(e). However, In the preceding paragraphs of the SOC, the RO had already explained that the Veteran's unit did not qualify for the herbicide agent presumption under 38 C.F.R. § 3.307(a)(6)(iv), thus ending the RO's herbicide agent presumptive service connection analysis. While the RO's explanation may have been confusing, the analysis constituted a correct application of the law. Next, in Combee v. Brown, 34 F.3d at 1043-1044, the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Here, the record contains no competent evidence proving the Veteran was actually exposed to herbicide agents during his service in Korea. He has submitted temporary orders showing he traveled to Kimpo, Korea. This data, along with other information regarding his Korean service, was submitted via the Defense Personnel Records Information Retrieval System (DPRIS), to the JSRRC for research. In October 2015, JSRRC responded stating: We reviewed the 1971 unit history submitted by the 2nd Battalion, 71st Air Defense Artillery (2nd Bn, 71st ADA). The history documents that Battery A (Btry A) was administratively located at Kimpo-Op. The tactical site occupied by Btry A was located on a hilltop adjacent to Kimpo-Op. However, the history does not document the use, storage, spraying, or transporting of herbicides. In addition, the history does not document any specific duties performed by members of the 2nd Bn, 71st ADA along the Demilitarized Zone. This evidence from the JSRRC is highly probative in this determination. The Board has considered the Veteran's June 2012 lay statement that he "may have been exposed to Agent Orange any time while serving in Korea (Dec. 1970 thru Jan. 1972)." His statements are given lesser probative value for a variety of reasons. First, he only asserts that he may have been exposed but his subjective belief is outweighed by the credible and competent objective evidence received from the JSRCC. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service). Further, he is not competent to identify herbicide agents because that determination is not lay-observable. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, his lay statements regarding herbicide agent exposure are entitled to lesser probative weight in this determination. In addition, service treatment records are silent as to any complaints, treatment, or diagnosis of CLL during active duty service. Discharge examination is negative for CLL. The objective clinical evidence of record establishes that the Veteran was diagnosed with CLL in 2002. VA treatment records from 2012 demonstrate that he relapsed with CLL after having been in remission for over 5 years following chemotherapy. The VA treatment records contain no opinion with respect to the etiology of CLL. To the extent that the VA medical records list "Agent Orange" exposure in the social history section of treatment notes, these notations are based exclusively on his inaccurate self-reported lay statements. Nonetheless, the Veteran has a current diagnosis of CLL for purposes of meeting the first element of direct service connection. Despite the diagnosis, the record does not suggest a relationship between the CLL and the Veteran's active duty service other than his own statements. As previously discussed, his lay statements regarding herbicide exposure are of lesser probative value because he lacks competency to provide such an opinion. Thus, he has failed to demonstrate his CLL is the result of disease or injury incurred during active duty service. Having failed to satisfy the second element of a direct service connection claim, he is not entitlement to service connection for CLL on a direct service connection basis. Accordingly, the preponderance of the competent and credible evidence of record weighs against the claim, the benefit-of-the-doubt rule is inapplicable, and the appeal is denied. Service Connection for Sinus Infections, Ear Infections, and Shingles The Veteran's primary contention is that his sinus infections, ear infections, and shingles are secondary to his CLL. However, as established above, service-connected for CLL is not warranted. Thus, service connection based on a secondary theory of entitlement is denied. The Veteran has never alleged that these disabilities are the direct result of his active duty service, and such a claim is not supported by the evidence of record. Nonetheless, the Board will analyze whether these conditions satisfy the direct service connection requirements. VA treatment records demonstrate that the Veteran was treated for herpes zoster (shingles) in June 2010 with post-herpetic neuralgia resulting in facial nerve paresis. This condition had largely cleared by the time he filed his claim for secondary service connection in June 2012; however, granting him the benefit of the doubt, he experienced a current shingles disability within the appeals period. Next, recent VA treatment records are replete with references to chronic ear and sinus infections due to eustachian tube dysfunction. Therefore, all the claimed disorders have been shown. However, the record is devoid of any competent evidence establishing that these current disabilities were incurred during or otherwise etiologically related to the Veteran's period of active duty service, nor has he maintained that they are. The service treatment records are silent for complaints of, treatment for, or diagnosis of any of these conditions. The discharge examination from December 1971 is negative for any of these disabilities, and lists his ears, nose, and sinuses as normal. While the service treatment records note facial drainage at the sinus opening on the inferior of the chin, this is the result of a chin cyst and subsequent surgeries he underwent while in service. This is clearly unrelated to the Veteran's current complaints of sinusitis, ear infections, and eustachian tube dysfunction. None of the treating physicians have ever linked the current disabilities to his active duty service. Accordingly, the second and third elements of a direct service connection claim are not shown. As such, entitlement to service connection for sinus infection, ear infection, and shingle disabilities is denied. Lastly, the Board notes that sinus infection, ear infection, and shingle disabilities are not medical conditions subject to any presumptive service connection provisions. As the evidence preponderates against the claims of entitlement to service connection for these disabilities, the reasonable doubt doctrine found in 38 C.F.R. § 3.102 is not for application. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. (CONTINUED ON NEXT PAGE) ORDER Service connection for CLL is denied. Service connection for chronic disability manifested by recurrent sinus infections is denied. Service connection for chronic disability manifested by recurrent ear infections is denied. Service connection for shingles is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs