Citation Nr: 18160979 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 10-25 025 DATE: December 28, 2018 ORDER Service connection for renal cell carcinoma, claimed as due to herbicide exposure, is denied. Service connection for acute and subacute peripheral neuropathy, claimed as due to herbicide exposure, is denied. Service connection for tooth loss, claimed as due to herbicide exposure, is denied. FINDINGS OF FACT 1. The preponderance of competent and credible evidence weighs against a finding that the Veteran was exposed to herbicide agents in service while serving in the Panama Canal Zone. Therefore, exposure to herbicide agents may not be presumed. 2. The preponderance of competent and credible evidence weighs against a finding that renal cell carcinoma was demonstrated in-service; that renal cell carcinoma was compensably disabling within a year of separation from active duty; or that there is a nexus between renal cell carcinoma diagnosed in 2008 and service. 3. The preponderance of competent and credible evidence weighs against a finding that peripheral neuropathy of the left lower extremity was demonstrated in-service; that peripheral neuropathy of the left lower extremity was compensably disabling within a year of separation from active duty; or that there is a nexus between the current diagnosis of peripheral neuropathy of left lower extremity and service. 4. The Veteran does not have a dental disorder for which service-connected compensation is payable. CONCLUSIONS OF LAW 1. The criteria for service connection for renal cell carcinoma, claimed as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for service connection for peripheral neuropathy of the left lower extremity, claimed as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for service connection for tooth loss, claimed as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1967 to May 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2015 and in May 2017, the Board remanded the claims for further development. Service Connection The Veteran had alleged that he suffers from renal cell carcinoma, tooth loss and peripheral neuropathy of the left leg as a result of his exposure to herbicides during service; direct service connection has not been alleged. Specifically, the Veteran contends that he was exposed to herbicides while serving in Panama as Agent Orange was stored and tested on his base. Service records confirm that the Veteran was stationed at Fort Davis and Fort Gulick from April 1968 to May 1969. In support of his claim, the Veteran submitted various newspaper and internet articles asserting that the United States military conducted secret tests of Agent Orange in Panama during the 1960s and 1970s to simulate the battlefield conditions of Southeast Asia. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active duty. See 38 U.S.C. § 1110. Service connection may also be warranted 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). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. Early-onset peripheral neuropathy is listed under that section as one of these diseases. Neither renal cancer nor tooth loss is listed under that section as one of these diseases. The laws and regulations pertaining to Agent Orange exposure do not provide for a presumption of service connection due to exposure to herbicide agents for veterans who have any of the listed diseases and served on active duty in Panama or the Panama Canal Zone. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Certain chronic disabilities, such as malignant tumors are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303 (b). Analysis Herbicide exposure The Veteran essentially contends that he was exposed to herbicide agents while serving in the Panama Canal Zone. There is no evidence that he served in the Republic of Vietnam, and he does not allege that he had such service. In support of his assertion, the Veteran has submitted an August 1999 article from The Dallas Morning News on testing of Agent Orange in Panama. He also submitted various Internet articles that discuss The Dallas Morning News article. The Dallas Morning News article reports that the U.S. military conducted secret tests of Agent Orange and other toxic herbicides in Panama in the 1960s and 1970s. A spokesman for the U.S. Southern Command, the operational authority in Panama at that time, stated that there was no evidence that Agent Orange was actually sprayed in Panama. An attorney for Vietnam Veterans of America stated that VA has acknowledged the use of Agent Orange or similar toxic herbicides contributed to the deaths of at least three veterans who were stationed in Panama in the 1960s and 1970s. The article notes that in testimony at a VA hearing in 1997, a former operations officer for herbicides at Fort Dietrich, Maryland, stated that several hundred drums of Agent Orange were shipped to Panama in the late 1960s for tests. The article states that this person could not be reached for comment. The article notes that an unnamed veteran who served in Panama from 1968 to 1971 said that he witnessed the spraying of Agent Orange. In November 2016, the RO issued a Memorandum in which it noted that The Joint Service Records Research Center (JSRRC) had been contacted and reviewed the 1968-1969 unit histories submitted by the 4th Battalion 10th Infantry as well as the histories submitted by the 193rd Infantry Brigade. It was determined that the histories do not document the use, spraying or transportation of herbicides, to include Agent Orange, at Fort Davis, Panama Canal Zone. In a September 2017 memorandum, the JSRRC noted that it had reviewed the 1968-1969 unit histories submitted by the 4th Battalion, 10th Infantry (4th Bn 10th Inf), as well as the 1968 – 1969 histories submitted by the 193rd Infantry Brigade (9th Inf Bde) and the 8th Special Forces Group, 1st Special Forces. “The histories document that the 4th Bn, 10th Inf was located at Fort Davis, Panama Canal Zone. The records do not document the use, storage, spraying or transportation of herbicides to include Agent Orange at Fort Davis or Fort Gulick, Panama Canal Zone. Veteran’s service treatment records and personnel records were reviewed for verification of possible indicators of exposure. Therefore, the exposure identified by the veteran is not conceded.” The Board notes that it is not bound by any VA determinations that other veterans were exposed to herbicide agents while serving in Panama or the Panama Canal Zone, such as a veteran noted in The Dallas Morning Herald article. As for the Veteran’s contentions and the claim of an unnamed veteran that are discussed in The Dallas Morning News article, the Board places greater weight on the findings of Compensation Services and JSRRC than on the Veteran’s testimony and The Dallas Morning News article because their findings are based on more than just the testimonies of a few people. Instead, their findings are based on objective documentation - the Department of Defense listing of dates and locations of herbicide tests and storage outside of Vietnam. Therefore, as actual exposure has not been shown by service department record, and there is no credible evidence otherwise establishing exposure to herbicide agents, the Board finds that exposure to herbicide agents is not conceded, and service connection cannot be granted on a presumptive basis for disabilities as a result of herbicide-agent exposure. 1. Service connection for renal cell carcinoma, claimed as due to herbicide exposure. As for Hickson element (1), current disability, the medical evidence shows a diagnosis of renal cell carcinoma. Therefore, element (1) is satisfied. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Board notes that Veteran’s service treatment records are negative for any finding, complaints, or treatment related to renal cancer. At the May 1969 separation examination, the genitourinary system exam was normal. There are no indications in the record of any such problem or diagnosis before 2008, which is the year of diagnosis of renal cell carcinoma. Therefore, Hickson element (2) is not met. Therefore, because Hickson element (2) is not met, Hickson element (3), evidence of a nexus between a current disability and service, cannot be satisfied either. There is no other competent medical evidence relating the current diagnosis of renal cell carcinoma to active service. Neither the Veteran nor his representative has asserted that he has had renal cell carcinoma since service. Therefore, he is not claiming continuity of symptomatology. As to the Veteran’s claim that his renal cell carcinoma is related to active service, the Board notes that although laypersons are competent to provide opinions on some medical issues, as to the specific issue in this case, the etiology of renal cell carcinoma falls outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007) (laypersons not competent to diagnose cancer). In summary, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against finding that his renal cell carcinoma is related to service, to include as secondary to herbicide-agent exposure. Therefore, the preponderance of the evidence is against the claim, and it is denied. 2. Service connection for acute and subacute peripheral neuropathy, claimed as due to herbicide exposure The Veteran contends that he has peripheral neuropathy of the left lower extremity that is related to exposure to herbicides in service. As for Hickson element (1), current disability, the medical evidence shows a diagnosis of peripheral neuropathy. Therefore, element (1) is satisfied. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Board notes that Veteran’s service treatment records are negative for any finding, complaints, or treatment related to peripheral neuropathy of the left lower extremity. At a May 1969 separation examination, the lower extremities and neurologic systems were normal. VA treatment records note complaints of pain radiating to lower leg in February 2008. February 2009 treatment records show subjective decreased sensation over the dorsum of the left foot and toes, with minimal weakness in the hamstrings and chronic left foot drop. MRI showed severe left L5/S1 foraminal stenosis which may explain left L5 radiculopathy with left foot drop. There are no indications in the record of any such problem or diagnosis before 2008, which is the year of diagnosis of neuropathy in the left lower extremity. The Board has found that there is no credible evidence that the Veteran was exposed to herbicide agents during his time in service. As for Hickson element (3), evidence of a nexus between a current disability and service, there is no competent medical evidence relating the current diagnosis of peripheral neuropathy to active service. The Board again observes that peripheral neuropathy of the left lower extremity was not diagnosed until 2008. Though the Veteran attributes his peripheral neuropathy to service, neither the Veteran nor his representative asserts that he has had neurological symptomatology since service. Therefore, he is not claiming continuity of symptomatology. As to the Veteran’s claim that his peripheral neuropathy is related to herbicide-agent exposure, the Board notes that although laypersons are competent to provide opinions on some medical issues, as to the specific issue in this case, the etiology of peripheral neuropathy falls outside the realm of common knowledge of a layperson. See Kahana, 24 Vet. App. at 435; Jandreau, 492 F.3d at 1733 n. 4. Therefore, service connection for peripheral neuropathy of the left lower extremity on a direct basis is not warranted. In summary, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against finding that his peripheral neuropathy of the left lower extremity is related to service, to include as secondary to herbicide-agent exposure. Therefore, the preponderance of the evidence is against the claim, and it is denied. 3. Service connection for tooth loss, claimed as due to herbicide exposure. The dental conditions for which service-connected compensation benefits are available are set under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Disability compensation and VA outpatient dental treatment may be provided only for certain specified types of service-connected dental disorders. For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. Dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, loss of the maxilla, nonunion or malunion of the maxilla, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, DCs 9900-9916. The Board notes that the portion of VA’s Schedule for Rating Disabilities addressing dental and oral conditions was revised effective September 10, 2017. The Veteran has not been notified as to the changes in the regulations and the RO has not adjudicated his claims under the new regulations; however, as the new regulations involve benign or malignant neoplasms that are not applicable to the Veteran’s current claim and the other changes involved only clarification of the rating terms, the Board finds that there is no prejudice in adjudicating the Veteran’s dental claim. Under 38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are to be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. The matter of eligibility for VA dental treatment is not the subject of the Board’s review. Rather, the Board will address whether the Veteran is entitled to service connection for VA compensation purposes. The service treatment records do not note any injuries to the mouth or teeth. The separation examination in May 1969 noted normal mouth and throat examination. A July 2008 VA treatment record noted the Veteran had numerous missing teeth. “He needs several restorations and two extractions. He has moderate calculus and some plaque… He has some bone loss due to lack of home care.” Considering the pertinent evidence in light of the above, the Board finds that the Veteran does not have a compensable dental disorder. As noted above, replaceable missing teeth and periodontal gum disease may be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment. See 38 C.F.R. § 3.381. In this case, there is no competent medical or dental evidence of loss of teeth due to loss of substance of the body of the maxilla or mandible due to bone loss through trauma or any other condition on which service connection for compensation purposes could be allowed. The records do not indicate that during service the Veteran incurred an injury to the mandible or maxilla and the Veteran does not contend otherwise. There is evidence of the loss of teeth after service; however, there is no evidence that the loss or removal of the teeth was the result of the loss of mandible or maxilla. Thus, none of the other DCs, 9900 through 9916, apply in this case. Again, DCs 9917 and 9918 are not applicable because they involve neoplasms, which are not present in this case. The Board has considered the Veteran’s contention that his tooth loss is related to exposure to herbicides. Here, as noted above, herbicide exposure has not been shown. Further, the Veteran does not have a “current dental disability” for service-connected compensation purposes. While service connection may be established for treatment purposes for replaceable missing teeth and periodontal disease, the regulations listed above clearly prohibit service connection for purposes of compensation where the disability involves replaceable missing teeth or periodontal disease. As neither condition is recognized by the applicable regulations as a disability for which VA compensation may be granted, the Veteran’s claim is not warranted. See 38 C.F.R. § 3.381 (periodontal disease is not a disability for compensation purposes). In addition, there was no evidence of any in-service dental trauma which resulted in residuals, additional loss of teeth, malunion or nonunion of the maxilla, or loss of body of the maxilla or mandible. See generally, VAOPGCPREC 5-97; 38 C.F.R. § 4.150, DCs 9913-9916. Consequently, there is no basis for entitlement to service connection for the Veteran’s claimed dental disorder for compensation purposes. In reaching the conclusions above the Board has again considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b) (2012); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel