Citation Nr: 18157198 Decision Date: 12/12/18 Archive Date: 12/11/18 DOCKET NO. 17-64 949 DATE: December 12, 2018 ORDER Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for fibromyalgia is granted to that extent only. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a heart condition is granted to that extent only. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for diabetes mellitus to include as due to herbicide exposure is granted to that extent only. Entitlement to service connection for fibromyalgia is denied. Entitlement to service connection for a heart condition is denied. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for a psychiatric disability to include posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for kidney cancer to include as due to radiation exposure is remanded. FINDINGS OF FACT 1. The evidence received subsequent to the most recent final denial of service connection for a lung condition is new and material because it raises a reasonable possibility of substantiating the claim for fibromyalgia. 2. The evidence received subsequent to the most recent final denial of service connection for a lung condition is new and material because it raises a reasonable possibility of substantiating the claim for a heart condition. 3. The evidence received subsequent to the most recent final denial of service connection for a lung condition is new and material because it raises a reasonable possibility of substantiating the claim for diabetes mellitus. 4. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of fibromyalgia. 5. The Veteran did not serve in the Republic of Vietnam or on its inland waterways and has not been shown to have been exposed to herbicides during active service. 6. The Veteran’s heart condition did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 7. The Veteran’s diabetes mellitus did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 8. The Veteran’s reported stressor, upon which his PTSD diagnosis was based, has not been corroborated; other psychiatric disabilities have not otherwise been etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. As new and material evidence has been received since the March 2016 Board decision, the requirements to reopen a previously denied claim for service connection for fibromyalgia have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. As new and material evidence has been received since the March 2016 Board decision, the requirements to reopen a previously denied claim for service connection for a heart condition have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. As new and material evidence has been received since the March 2016 Board decision, the requirements to reopen a previously denied claim for service connection for diabetes mellitus have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for fibromyalgia are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for a heart disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 7. The criteria for service connection for a psychiatric disability to include PTSD are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1962 to December 1963 to include additional service in the Army Reserve. The Veteran testified before the undersigned Veterans Law Judge in August 2018. New and Material Evidence New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The claims for service connection for fibromyalgia, a heart disability, and diabetes mellitus were denied by a March 2016 Board decision, on the basis there was no evidence of record to show that these conditions onset during service and the Veteran did not have exposure to herbicides while deployed to Korea. Since the March 2016 Board decision, newly received evidence shows that the Veteran was claimed he was exposed to herbicides while stationed at Fort Drum and evidence submitted did indicate that herbicides were tested at that site previously. The Board finds that the evidence added to the claims file is new as it was not before the adjudicators at the time of the March 2016 rating decision. Furthermore, the new evidence is material because it relates to unproven elements of the claim previously denied in the March 2016 decision. Specifically, that newly submitted evidence suggests that herbicides may have been deployed at Fort Drum, and raise the possibility that the Veteran had exposure to herbicide agents during his military service. Accordingly, the Board finds that the low threshold for reopening the claims have been met and the Veteran’s claims are reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303 (d). Service connection may only be granted for a current disability. When a claimed condition is not shown, there may be no grant of service connection. Congress specifically limited entitlement for service-connected disease or injury to cases where the incident resulted in a disability. In the absence of proof of a present disability there can be no valid claim. 38 U.S.C. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). 1. Entitlement to service connection for fibromyalgia The Veteran asserts that he has fibromyalgia that was caused by active service. A review of the Veteran’s service treatment records, post-service VA and private medical records, show no reports or diagnosis of fibromyalgia. The threshold consideration for any service connection claim is the existence of a current disability. 38 U.S.C. § 1131; 38 C.F.R. § 3.303; Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The only evidence of record in support of the Veteran’s claim is from his own lay statements and testimony, in which he contends that he has a diagnosed condition of fibromyalgia. The Board notes that the Veteran has reported he has fibromyalgia. Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperon is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer), (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 (Fed. Cir. 2007). In the present case, fibromyalgia is not simple to diagnose. The diagnosis of a fibromyalgia requires medical knowledge and testing to determine a diagnosis. The Veteran has not been shown to possess the medical background or training to render such a diagnosis. Accordingly, the Veteran is not competent to establish a diagnosis for his claimed fibromyalgia. In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The record does not demonstrate that the Veteran has a current disability of fibromyalgia. The threshold element of a service connection claim (a current disability) has not been met; therefore, service connection for fibromyalgia is denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). 2. Entitlement to service connection for a heart condition to include as due to herbicide exposure 3. Entitlement to service connection for diabetes mellitus to include as due to herbicide exposure The Veteran asserts that he was exposed to herbicides while assigned to Fort Drum during Reserve service in 1964 and that exposure caused his heart condition and diabetes mellitus. The Veteran has not asserted exposure in the Republic of Vietnam. The Board notes that the Joint Services Research and Records Center (JSRRC) confirmed that the Veteran did have reserve service at Fort Drum in 1964. If a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, certain enumerated diseases shall be service connected, if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309 (e). Of note, any period of service is sufficient for the purpose of establishing the presumptive service connection of a specified disease under the conditions listed in §3.309(e). 38 C.F.R. § 3.307 (a)(1). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, including cardiomyopathy, ischemic heart disease, and diabetes mellitus, 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 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran did not serve in the Republic of Vietnam and there is no assertion to the contrary. Nevertheless, a Veteran may show that he was exposed to herbicide agents outside of Vietnam while in service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). VA has developed specific procedures to determine whether a Veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam. Typically, a Veteran is asked for the approximate dates, location, and nature of the alleged exposure. If a statement is received from the Veteran, this detailed statement of the Veteran’s claimed herbicide exposure must be sent to the Compensation and Pension Service via e-mail and a review be requested of the Department of Defense’s inventory of herbicide operations to determine whether herbicides were used or tested as alleged. If the exposure is not verified, a request should then be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. The Veteran does not contend that he had service in the Republic of Vietnam and his claim is based solely on exposure while assigned to Fort Drum. In this case, VA issued a formal finding that it was unable to concede that the Veteran was exposed to herbicides while assigned to Fort Drum for reserve duty in 1964. The JSRRC, and determined that herbicides at Fort Drum were used in 1959 in a four-mile spray from a helicopter. The JSRRC reported that the Veteran did not provide more information regarding herbicide exposure therefore the information provided by the Veteran was insufficient to conduct further research. In this case, the Veteran is unable to produce such evidence since his personnel records show he was not on active service at Fort Drum in 1959. The Board therefore, finds that the Veteran was not exposed to herbicides during his reserve service as he was not assigned to Fort Drum until five years after herbicide use. Unfortunately, the record contains no competent evidence of herbicide exposure besides the Veteran’s own lay statements and a layperson’s assertions indicating exposure to gases or chemicals during service are not considered to be sufficient evidence alone to establish actual exposure to a tactical herbicide. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Here, while the Veteran asserts that he was exposed to herbicides at Fort Drum, he has not provided any competent evidence of such exposure. As noted above the Veteran was not assigned to Fort Drum until five years after herbicides were used As such, the Board concludes that the Veteran is not presumed to have been exposed to herbicides during service and service connection based on exposure to herbicides for heart condition and diabetes mellitus must be denied on that basis. Regarding direct service connection, the Veteran’s service treatment records do not show any complaints, symptoms, treatment, or diagnosis for his heart condition or diabetes mellitus. There is no allegation that the diseases the Veteran is seeking service connection for these disabilities based on that they began in service or within a year of either active duty or active duty for training. Regarding a heart condition, the Veteran’s post-service treatment records show at a history of atrial fibrillation and hypertension 5 to 6 years prior to the notation in 2007 and the evidence of record shows hypertension treatment as early as November 2007. The Veteran has not alleged that his hypertension began in service or within one year after service. Regarding diabetes mellitus, the Veteran’s VA records indicated in November 2007 that he had a history of borderline diabetes and his private records show high glucose levels in 2009 and 2012. There are no medical records that show an earlier diagnosis of diabetes and the Veteran has not made any allegations that his diabetes started during or shortly after service. The weight of the competent evidence is thus against entitlement to presumptive service connection under 38 C.F.R. § 3.309 (a) for either diabetes or a heart condition. The only evidence of record that supports the Veteran’s claims are his own lay assertions, the Board finds that the etiologies of diabetes mellitus, heart disorder, and fall outside the realm of common knowledge of a layperson and the Veteran is, thus, not competent to provide evidence on the issues of causation. Jandreau, 492 F.3d 1372, 1377 n.4. The Veteran’s claimed disabilities require specialized training for determinations as to diagnoses and causation, and are, therefore, not susceptible to lay opinions on etiology. Thus, because of the medical complexity of this matter, the appellant is not competent to render such an opinion or attempt to present lay assertions to establish a nexus between his current diagnoses and service. Absent competent, credible, and probative evidence of a nexus between Veteran’s service and his current diagnoses of diabetes mellitus and heart condition, the Board finds that the Veteran’s claimed disabilities are not related to service. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD). The Veteran is seeking service connection for PTSD. Specifically, he has reported that during service he witnessed two fellow service members suffer electrocution deaths while putting up an antenna during a rain storm against his advice. The Veteran reported that his incident occurred in March or April 1963. The Veteran indicated that this incident resulted in PTSD. In October 2018 a Vet Center Readjustment Counsel reported that the Veteran’s reported stressors fit what would be needed for a diagnosis of PTSD. In addition to the above criteria needed to generally establish service connection, service connection for PTSD has its own requirements. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304 (f). The evidence required to establish a claimed in-service stressor depends on the nature of both the stressor and the Veteran’s service. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(2). Without combat participation, if the Veteran’s claimed stressor is related to a fear of hostile military or terrorist activity, and a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and the Veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3). VA attempted to verify the Veteran’s asserted stressor and in September 2016, the JSRRC coordinator issued a memorandum of a formal finding of a lack of information required to verify stressors in connection with the Veteran’s PTSD claim. In the memorandum, JSRRC reported that the Veteran’s stressor could not be corroborated, as the Veteran could not provide the names service members who were killed in the electrocution incident. Further, the memorandum stated that the National Archives and Records Administrations (NARA) was unable to locate unit records for the 127th Signal Battalion for 1963. Other historical and causality information was research but could not find information concerning the incident. Additional efforts to verify the stressor were undertaken by the National Personnel Records Center (NPRC) for the morning reports for the Veteran’s unit. NPRC responded that a search was not possible without the names of the soldiers injured in the incident. The JSRRC reviewed the Veteran’s service treatment records, and military personnel records and could find no evidence to support the claimed stressor and made a determination that the stressor was deemed unverifiable. The Veteran’s sole claimed stressor event is based on the incident of witnessing two soldiers killed by electrocution and being that there is no credible supporting evidence to corroborate that his incident, his purported stressor event is not corroborated. In sum, the Veteran’s claimed stressor event has not been corroborated, and, thus, could not support a PTSD diagnosis. To the extent the Veteran has been diagnosed with other psychiatric disabilities, other than PTSD, the evidence fails to show that such a condition is the result of his military service. Service treatment records are negative for any psychiatric complaints. Moreover, there is no suggestion for any medical professional that a psychiatric disability other than PTSD either began during or was otherwise caused by his military service. Accordingly, the preponderance of the evidence is against the claim, and service connection for an acquired psychiatric disability, to include PTSD, is denied. REASONS FOR REMAND The Veteran asserts that he was exposed to radiation from uranium and depleted uranium while stationed at Fort Carson, Colorado, and this exposure caused his kidney cancer. The Board finds that a remand is necessary to conduct a formal ionizing radiation dose reconstruction for the Veteran and a determination as to whether his in-service duties met the definition of a “radiation-risk activity” that would have exposed him to ionizing radiation as no development regarding the Veteran’s assertions have been undertaken. The matter is REMANDED for the following action: Refer the case to VA’s Under Secretary of Health for preparation of a dose estimate for the Veteran based on his reports of being exposed to depleted uranium or uranium while stationed at Fort Carson, Colorado. If the Veteran is found to have been exposed to ionizing radiation during service, schedule a VA examination, to determine whether it is at least as likely as not (50 percent probability or greater) that any residuals of kidney cancer were caused by or related to service, to include any exposures therein. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel