Citation Nr: 1806215 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 03-19 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than September 6, 2013, for the grant of service connection for diabetic neuropathy of the right lower extremity. 2. Entitlement to an initial disability rating in excess of 10 percent for diabetic neuropathy of the right lower extremity. 3. Entitlement to service connection for chronic lymphocytic leukemia (CLL). REPRESENTATION Veteran represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1954 to November 1957 and from January 1958 to July 1964. Thereafter, he had periods of active duty for training and inactive duty for training in the Reserves. This matter came to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A January 2001 rating decision denied entitlement to service connection for CLL. In September 2006, the Board denied service connection for CLL. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) which, in September 2005, on the basis of a Joint Motion for Remand (Joint Motion), vacated the denial and remanded the matter to the Board for further action. In February 2007 and August 2010, the Board remanded the issue for further development. In December 2012, the Board denied entitlement to service connection for CLL. The Veteran appealed the Board's decision to the Court which, in October 2013, on the basis of a Joint Motion for Partial Remand (Partial Joint Motion), vacated the denial and remanded the matter to the Board for further action. In August 2014, the Board remanded this issue for further development. A June 2008 rating decision granted entitlement to service connection for diabetes mellitus, assigning a 20 percent rating, and granted service connection for diabetic neuropathy, left lower extremity, assigning a 10 percent rating. A June 2011 rating decision RO granted of service connection for bilateral hearing loss, assigning a noncompensable rating. The Veteran appealed the initially assigned disability ratings to the Board, which, in December 2012, remanded the issues for further development. In August 2014, the Board denied an initial compensable disability rating for bilateral hearing loss prior to November 25, 2013; granted a disability rating of 10 percent for bilateral hearing loss from November 25, 2013; denied an initial disability rating in excess of 20 percent for diabetes mellitus; and denied an initial disability rating in excess of 10 percent for diabetic neuropathy of the left lower extremity. Accordingly, these issues are no longer before the Board. In August 2014, the Board remanded the following issues to the Agency of Original Jurisdiction (AOJ) to issue a statement of the case: entitlement an initial disability rating in excess of 10 percent for diabetic neuropathy of the right lower extremity and entitlement to an effective date earlier than September 6, 2013, for the grant of service connection for diabetic neuropathy of the right lower extremity. In March 2016, the RO issued a statement of the case, and the Veteran perfected these issues for appeal in March 2016. Accordingly, these issues are before the Board. In March 2016, the Veteran requested a Board hearing before a Veterans Law Judge. However, in a March 2017 communication, he, by and through his duly authorized representative, withdrew his request for a Board hearing. 38 C.F.R. § 20.704(e) (2017). Additionally, the Veteran's attorney requested a 90 day extension to submit additional evidence and argument, which was granted in February 2017. However, in March 2017, the veteran's attorney withdrew his request for an extension and asked the board to decide the veteran's claim without further delay. The Board acknowledges that the issues of entitlement to service connection for coronary artery disease and hypertension and a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) have been perfected, but not yet certified to the Board. While the Veterans Appeals Control and Locator System shows that these appeals were closed because the Veteran did not perfect his appeal in a timely manner, the claims file shows that the RO issued a statement of the case October 25, 2013, and the Veteran perfected his appeal with a timely substantive appeal, which the RO received on December 9, 2013. Even though these issues have been properly perfected for appeal, they have not been certified to the Board. Accordingly, the Board declines jurisdiction over these issues are refers them to the AOJ for appropriate action. In July 2016, the Veteran submitted a private medical opinion that his service-connected neuropathy causes hypertension. The issue of whether hypertension is secondary to the Veteran's service-connected neuropathy has not yet been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). In September 2017, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration. Later that month, the Veteran and his representative were provided a copy of the opinion and afforded the opportunity to submit additional evidence and argument. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to an effective date earlier than September 6, 2013, for the grant of service connection for diabetic neuropathy of the right lower extremity and entitlement to an initial disability rating in excess of 10 percent for diabetic neuropathy of the right lower extremity are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam, and is not shown to have been exposed to an herbicide agent during service. 2. CLL did not manifest during service, was not diagnosed within the first after separation from service, and is not otherwise related to the Veteran's active service, to include exposure to insecticides, pesticides, and commercial herbicides. CONCLUSION OF LAW CLL was not incurred in or aggravated by active service, and CLL may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for CLL, which he contends is related to in-service exposure to pesticides, insecticides, and commercial and tactical herbicides. The evidence shows that the Veteran was diagnosed with CLL in August 1994. The Veteran does not contend and the evidence does not suggest that CLL manifested in service or within one year after separation from service. Accordingly, this case turns on whether the Veteran's CLL is otherwise related to service. Initially, the Board finds that the Veteran is not presumed to have been exposed to tactical herbicides during active service. As detailed, the Veteran served from February 1954 to November 1957, and from January 1958 to July 1964. While he served during the Vietnam era, he did not serve in the country of Vietnam. During his first period of service (February 1954 to November 1957) the Veteran had 1 year, 4 months, and 14 days of foreign and/or sea service but it did not include service in Vietnam. During his second period of service (January 1958 to July 1964), the Veteran had 2 years, 8 months, and 15 days of foreign and/or sea service but it did not include service in Vietnam. Service treatment records reflect that the Veteran's foreign service constituted being stationed at the Royal Air Force Base (RAF) in Alconbury, England. Moreover, an October 2007 'Information Response' from the National Personnel Records Center (NPRC) reflects that there is no evidence in the file to substantiate any service in the Republic of Vietnam. Likewise, the Veteran does not assert that he served in Vietnam. Thus, while the Veteran has been diagnosed with a disease listed at 38 C.F.R. § 3.309(e) (CLL), he does not have the requisite type of service in the Republic of Vietnam as defined by 38 C.F.R. §§ 3.313(a) and 3.307(a)(6)(iii), and the presumption of exposure to a herbicide agent under 38 C.F.R. § 3.307 does not apply herein. Therefore, the presumption provisions of this regulation are not applicable. Notwithstanding the foregoing presumption provisions, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98- 542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Thus, presumption is not the sole method for showing causation. In this vein, the Board's adjudication below will include consideration of whether service connection may be awarded for CLL on a direct incurrence basis. Again, the Veteran contends that his CLL is due to service, including exposure to pesticides and herbicides. The Veteran asserts exposure to herbicides and pesticides prior to the Vietnam era. Specifically, he reports exposure to herbicides and pesticides while stationed at Fort Belvoir, Virginia, while attending Army technical school for Water Supply and Sanitation. Official service records reflect that he was stationed at Fort Belvoir from April to June 1954 and at Lockbourne Air Force Base (AFB) from June to November 1954. The Veteran contends that he operated an early model fogging machine from the back of a weapons carrier vehicle. Fifty-five gallon drums were used to mix quantities of DDT and kerosene to generate a fog mixture which was distributed on the base proper for insect control. This type of work was performed without safety devices, thus he asserts he was exposed to DDT and kerosene. He also asserts that while stationed at Lockbourne AFB, he operated a hand cranked hopper containing herbicidal products, and this activity was performed without the use of facial masks. He stated that such work was done around the base flight line and adjacent buildings to eliminate grasses and weeks which might harbor or shelter rodents and flying insects. He stated that this operation was performed each week while he was stationed at Lockbourne AFB. Thereafter, he worked in water supply, insect and rodent control, sewage disposal, and base-wide sanitation at Turner AFB. He performed this type of work until April 1959. He also reported that during retraining from April to November 1959, he used carbon tetrachloride as a cleaning agent for certain electronics equipment and other types of equipment. Service treatment records contain an August 1954 record which reflects the examiner's notation that the Veteran worked with DDT chemicals and suffered from headaches. Another August 1954 notation reflects that the Veteran's headaches subsided when he was not working with DDT. The Veteran's formal on the job training record shows that the Veteran was exposed to chemicals used in the eradication of insects and rodents for the period from November 1954 to May 1955. His duties included mixing and preparing insecticides and rodenticides, extermination, storing chemicals and maintaining the equipment used to exterminate. Initially, the Board finds that VA has, in effect, accepted that the Veteran was exposed to commercial herbicides, pesticides, and insecticides. In this regard, the RO granted service connection for diabetes mellitus based on in-service exposure to insecticides/pesticides, herbicides, and dioxin from 1954 to 1959. See also VA medical opinions (April 2008, May 2008) (relating the Veteran's diabetes mellitus to in-service exposure to insecticides/pesticides, herbicides, and dioxin). The Board finds that preponderance of the evidence is against the Veteran's assertion that he was exposed to tactical herbicides during service. Specifically, in October 2010, the Defense Personnel Records Information Retrieval System stated that available historical information does not document the spraying, testing, transporting, storage, or usage of tactical herbicides at Fort Belvoir or Lockbourne AFB in 1954. Additionally, Department of Defense records of herbicide spray areas and test sites outside the Republic of Vietnam do not include Fort Belvoir and Lockbourne AFB. Thus, the Board finds that the Veteran was not exposed to tactical herbicides, such as Agent Orange, during service. The competent medical evidence pertaining to whether the Veteran's CLL is related to in-service exposure to pesticides, insecticides, and commercial herbicides consists of VA and private medical opinions. In March 2001, Dr. D.L. and Dr. J.M. were unable to provide an opinion as to whether the Veteran's CLL is related to his in-service exposures. In April 2001, Dr. P.S. opined that there is a remote possibility that the Veteran's CLL is secondary to his chemical exposure in service. In May 2001, Dr. M.S. opined that there is not a lot of support for chemical involvement in the production of CLL, but noted that pesticides could play a role. The Board finds that the aforementioned opinions that there could be or is a remote possibility that the Veteran's CLL is related to his in-service exposures are speculative, and thus, provide neither positive nor negative support for the Veteran's claim. See Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (use of the term "could," is too speculative to support award of benefits). In June 2005, a VHA examiner opined that the Veteran's CLL is less likely as not caused by or a result of exposure to pesticides/insecticides. In addressing Dr. P.S.'s statements as to a possible link to CLL and chemical exposure in service, the VHA examiner found them to be accurate in the sense that it was "remotely possible that DDT played a role in the development of [the Veteran's] CLL." The examiner further found that there was no clear mechanism of association nor was there a clear causal etiology for CLL. "Retrospective epidemiologic studies do suggest an association with low grade non-Hodgkin's lymphomas and CLL although this association remains relatively weak." The examiner further explained that his opinion was consistent with Dr. P.S.'s, Dr. M.S.'s, and Dr. J.M.'s statements, as the etiology of CLL is unknown and there is a remote possibility that the Veteran's CLL was caused by DDT. The Board affords significant probative value to the June 2005 VHA examiner's opinion as it is based upon consideration of the Veteran's prior medical history and examinations, describes the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contains a reasoned explanation. In December 2008, a VA examiner opined that the Veteran's CLL is less likely as not caused by or a result of exposure to pesticides/insecticides. The VA examiner stated that currently there is no strong link between pesticides/insecticides and CLL. The exact mechanism that causes CLL is not well understood. What is known is that many patients with CLL have chromosomal abnormalities including deletions or additions of chromosomes/parts of chromosomes. In general, CLL tends to affect older adults (50 and older). The Veteran falls into the age group who develops CLL. The Board affords significant probative value to the December 2008 VA examiner's opinion as it is based upon consideration of the Veteran's prior medical history and examinations, describes the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contains a reasoned explanation. In May 2009, Dr. P.S. opined that the Veteran's CLL is most likely related to in-service exposure to Agent Orange. The Board affords no probative value to Dr. P.S.'s May 2009 opinion as it is predicated on the inaccurate factual premise that the Veteran was exposed to Agent Orange. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In January 2011, a VA examiner opined that the Veteran's CLL is less likely as not caused by or a result of his active military service. The examiner explained that there is no strong link between exposure to pesticides/insecticides and the development of CLL. The examiner stated that CLL tends to affect older adults (age 50 and older), and many patients with CLL have chromosomal abnormalities including deletions or additions of chromosomes or parts of chromosomes. The Board affords significant probative value to the January 2011 VA examiner's opinion as it is based upon consideration of the Veteran's prior medical history and examinations, describes the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contains a reasoned explanation. In September 2017, a VA oncologist opined that the Veteran's CLL is more likely than not caused by genetic predisposition, rather than exposure to commercial herbicides, pesticides, or insecticides. The oncologist explained that CLL is one of the few leukemias that is not associated with exposure to ionizing radiation, chemicals (e.g., herbicides and pesticides), or drugs. The oncologist noted that CLL is well known throughout the medical community to be related to genetics. The oncologist explained that medical studies indicate that CLL is uncommon in farmers exposed heavily to multiple chemicals. The oncologist further noted that most patients with CLL do not have a history of exposure to chemicals or drugs and that most Veteran's exposed to Agent Orange do not have CLL. The Board affords significant probative value to the August 2017 VA oncologist's opinion as the oncologist is a subject matter expert, and the oncologist's opinion is based upon consideration of the Veteran's prior medical history, examinations, and independent medical studies of CLL; describes the disability in sufficient detail so that the Board's evaluation is a fully informed one; and contains a reasoned explanation. As detailed, the June 2005 VHA examiner, the December 2008 VA examiner, the January 2011 VA examiner, and September 2017 VA oncologist all opined that it is less likely as not that the Veteran's CLL is due to exposure to chemicals in service, to include insecticides, pesticides, and commercial herbicides, to include DDT. The Board accepts these opinions as being the most probative medical evidence on the subject, as such were based on a review of all historical records, and contain detailed rationale for the medical conclusions the depth of the reports, and the fact that the opinions were based on a review of the applicable record, the Board finds such opinions are probative and material to the Veteran's claim. None of the opinions of record reflect a finding that there was a 50 percent or greater probability that the Veteran's CLL was a result of the Veteran's in-service chemical exposure, and as detailed the only opinion that does provide such a probability is based on an inaccurate factual premise. The Board has considered the Veteran's contention that a relationship exists between his CLL and chemical exposure in service. The Veteran's assertions of exposure to pesticides, insecticides, and commercial herbicides are credible, especially in light of the details regarding his chemical exposure in his service treatment and personnel records. The Veteran's assertions of tactical herbicide exposure are not credible as such contradicts official military records. While the Veteran's assertions of chemical exposure are credible, his lay assertions as to the cause of his CLL do not constitute competent medical evidence as he does not have the requisite medical expertise. Such question requires the expertise of medical professionals and as detailed there is no probative medical evidence relating his CLL to chemical exposure in service. The Internet articles noting pesticide exposure as a risk factor in the onset of leukemia have been considered, but do not specifically relate to the Veteran's circumstances and are not as probative as the VA opinions of record. The Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1). The Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated medical opinion. Sack v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus), and Mattern v. West, 12 Vet. App. 222, 228 (1999). But such treatise evidence does not provide support for a relationship between the Veteran's CLL and chemical exposure and is not accompanied by a supporting opinion. Rather the opinions provided by the physicians only provide remote or possible support for a relationship. Likewise, based on the possibility of a relationship between CLL and chemical exposure, VA opinions were requested and four different examiners provided negative etiological opinions. Thus, this treatise evidence, without more, cannot provide the basis for service connection. As the preponderance of the evidence is against the Veteran's claim of service connection for CLL, the benefit of the doubt provisions do not apply. Service connection is denied. ORDER Service connection for CLL is denied. REMAND The Veteran seeks entitlement (i) to an effective date earlier than September 6, 2013, for the grant of service connection for diabetic neuropathy of the right lower extremity and (ii) entitlement to an initial disability rating in excess of 10 percent for diabetic neuropathy of the right lower extremity. The Veteran's most recent VA examination report, dated September 2013, indicates that his peripheral neuropathy is mild in nature. However, in July 2016, the Veteran's private treating neurologist opined that nerve conduction studies performed at Shand Hospital show that his peripheral neuropathy is at least moderately severe. Remand is needed to obtain any outstanding Shand Hospital records, particularly nerve conduction studies, as they are directly relevant to the current severity and onset of the Veteran's peripheral neuropathy. Indeed, the Veteran's claim for an earlier effective date turns on the date of entitlement, as his claim stems from the June 22, 2005, service connection claim for diabetes mellitus. See 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). To date, the September 2013 VA examination contains the first diagnosis of peripheral neuropathy of the right lower extremity. In fact, the April 2009 VA examiner specifically ruled out the presence of peripheral neuropathy and the April 2008 VA examination shows that the right lower extremity was normal. Accordingly, the records from Shand Hospital, which appear to contain objective evidence of peripheral neuropathy are central to the Veteran's claim and must be obtained. Reexamination is also needed to ascertain the current severity of the Veteran's peripheral neuropathy, as the Veteran's private neurologist indicates that it has worsened since his most recent VA examination in September 2013. 38 C.F.R. § 3.327 (2017). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request authorization and consent to release information to VA, for Shand Hospital, as well as any other private doctor who has treated the Veteran's peripheral neuropathy of the right lower extremity. Upon receipt of such, take appropriate action to contact the identified providers and request complete records related to his peripheral neuropathy of the right lower extremity. The Veteran should be informed that in the alternative he may obtain and submit the records himself. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination to ascertain the current severity of his service-connected peripheral neuropathy of the right lower extremity. The examiner is to identify the date the Veteran's peripheral neuropathy of the right lower extremity began. In forming an opinion, the examiner is to address (i) the Veteran's contention that he has experienced peripheral neuropathy of the right lower extremity since 2005 as well as (ii) VA examination reports dated in April and December 2008, which rule out the presence of peripheral neuropathy of the right lower extremity. The examiner is to review the entire claims file, to include any electronic files. The examination report must include a complete rationale for all opinions expressed. 3. Finally, readjudicate the appeal. If either of the benefits sought remains, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs