Citation Nr: 1824035 Decision Date: 04/19/18 Archive Date: 04/26/18 DOCKET NO. 07-26 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for vascular spasms to include peripheral neuropathy of the bilateral lower extremities ("vascular spasms"), to include as due to exposure to contaminated water at Camp Lejeune, and exposure to herbicides in Okinawa, Japan. REPRESENTATION Veteran represented by: Michael Miskowiec, Esq. ATTORNEY FOR THE BOARD N.Y., Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky. FINDINGS OF FACTS 1. The January 2012 Board decision denying the service connection claim for vascular spasms to include peripheral neuropathy is final. 2. New and material evidence pertinent to the claim was received by VA since the January 2012 final denial. 3. The Veteran's vascular spasms did not manifest during active service, nor does the evidence establish that such a disorder is otherwise related to service, to include as a result of his presumed exposure to herbicides or exposure to contaminated water at Camp Lejeune. CONCLUSIONS OF LAW 1. The January 2012 decision denying service connection for vascular spasms to include peripheral neuropathy of the bilateral lower extremities is final. 38 U.S.C. § 7105 (c) (2006); 38 C.F.R. § 20.1100 (2011). 2. New and material evidence has been received since the January 2012 Board decision that is sufficient to reopen the Veteran's claim of entitlement to service connection for vascular spasms to include peripheral neuropathy of the bilateral lower extremities. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for service connection for vascular spasms to include peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and private treatment records have been obtained. The Board acknowledges that no medical examination has been conducted since the previous Board remand in April 2015 with respect to the Veteran's claim for vascular spasms. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). While the Board has considered the Veteran's lay assertions, the standards of McLendon are not met in this case. The newly submitted evidence does not indicate that his vascular spasms are related to service. The Federal Circuit has held that "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and the veteran's mere conclusory generalized lay statement that a service event or illness caused the claimant's current condition, such as in the present case, is insufficient to require the Secretary to provide a VA examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Therefore, VA examinations and opinions are not warranted for his vascular spasms. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Reopening Claims Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Veteran's claim for entitlement to service connection for vascular spasms to include peripheral neuropathy of the bilateral lower extremities was denied by the Board in January 2012. That decision is final. 38 U.S.C. § 7105 (c). At the time of the January 2012 Board decision, the record consisted of the Veteran's service treatment records (STRs), VA treatment records, and private medical records. Evidence received since the January 2012 rating decision includes additional VA treatment records and several articles, including a medical article suggesting the possibility of exposure to herbicides in Okinawa and another article on the possible health effects linked to TCE, PCE, benzene, and VC exposure. This evidence is presumed credible for the limited purposes of reopening the claim, and when that is done, the new information is considered to be material and is therefore sufficient to reopen the previously denied claim. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the claim is reopened. III. Service Connection In July 2012, the Veteran filed a claim requesting service connection for vascular spasms or peripheral neuropathy. He argued that he was stationed at Camp Lejeune in 1974 and 1975 and he believed that the problems with his legs might be due to exposure to contaminated water on that base. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires (1) 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. However, a veteran must actually set foot within the land borders of Vietnam, to include the contiguous waterways, in order to be entitled to the statutory presumptions for disabilities claimed as a result of exposure to herbicides. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); see also VAOPGCPREC 27-97. Whenever VA's Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between the exposure of humans to an herbicide agent and the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease. 38 U.S.C. § 1116(b)(1) (2012). If a veteran was exposed to an herbicide agent during active military service, the following diseases are presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. Peripheral neuropathy is among the list of disabilities which has been found to be presumptively linked to exposure to herbicide agents. However, the peripheral neuropathy must manifest within a year of the last exposure to herbicides. 38 U.S.C. § 1116(a)(2) (2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides to include Agent Orange used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 (2007). Although there are certain disabilities that are presumed were incurred in service as a result of exposure to Agent Orange for veterans who served in Vietnam, vascular spasms, to include peripheral neuropathy are not included on the list of presumptive diseases enumerated by the Secretary pursuant to the applicable statute. 38 C.F.R. §§ 3.307, 3.309(e). Notwithstanding the provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. 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. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d) (2011). In January 2012, the Board previously found that the medical evidence failed to establish a direct causal link between the Veteran's disability and his service. Since that time, the Veteran has not submitted any additional evidence that would support service connection on a direct basis. Medical evidence indicates that the Veteran did not complain of lower extremity symptoms for approximately 30 years after his separation. His October 1975 separation examination showed normal lower extremities and normal neurological evaluation. In March 2005, several decades after service, the Veteran visited a private neurologist, reporting problems with numbness and tingling in his legs and was treated for vascular spasms in his lower extremities. While not a dispositive factor, a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board will not address direct service connection further, concluding that the reasons for it being denied on this basis remain unchanged from the 2012 Board decision, and that decision's reasons and bases are included by reference in this decision. Subsequent visits to private and VA treatment centers, as well as VA examination reports failed to indicate a nexus between his condition and his military service. The evidence also failed to show continuity of symptomatology, which may be established if a claimant can demonstrate (1) that a chronic condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Savage, 10 Vet. App. at 495-96; see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). There is no continuity of symptomatology in this case. The Veteran now contends that he was exposed to Agent Orange and toxins when he was stationed in Okinawa, Japan. In his October 2015 Statement in Support of Claim, the Veteran indicated that he served in the United States Marines Third Tank Battalion on Okinawa from February 1973 to February 1974 at Camp Kinser and Kadena Air Force Base. The Veteran has submitted an internet article indicating that Agent Orange Dioxin was stored on the Okinawa bases, specifically, Camp Kinser. The article also highlighted two cases where veterans won compensation after developing prostate cancer and multiple myeloma due to exposure of the toxic substance while on base. Both diseases listed in the article are recognized under 38 C.F.R. § 3.309 (e) and those cases must be distinguished from the Veteran's specific circumstance. The Veteran also submitted a Talking Paper on Possible Toxic Contamination at Camp Kinser between 1945 to 1973. The study confirmed that there was no evidence that toxic dumping occurred off the U.S. Army's Machianto Service Area (MSA), Urasoe City, Okinawa. However, there was evidence of environmental contamination by heavy metals and pesticides caused by past hazardous material storage practices. In October 2017, VA issued a Formal Finding of a Lack of Information Required to Corroborate exposure to tactical herbicides/Agent Orange. While the Veteran did serve in Okinawa, Department of Defense has indicated that Okinawa is not one of the locations where Agent Orange is recognized as having been used or stored. VA had previously requested additional information from the Veteran regarding his exposure to herbicides, to which the Veteran did not respond. The Board does not need to address the issue of whether exposure to herbicide agents is established, as the Veteran is not seeking service connection for a disease that has been presumptively associated with herbicide exposure. The Board understands the Veteran's arguments and has reviewed the articles he submitted. However, the articles make no reference to the neuropathy symptoms experienced by the Veteran. One of the articles is very general in nature and does not contain any information or analysis specific to the Veteran's case or the circumstances of his disability. The internet article merely catalogues some of the possible health effects of herbicide exposure, but does not indicate the likelihood of such a link or causation. As such, the article does not suggest the possibility that the Veteran's disability might be the result of exposure to herbicide agents. Accordingly, service connection on this presumptive basis is not warranted. The Veteran also contends that exposure to contaminated water while stationed at Camp Lejeune, North Carolina, may have caused his vascular spasms. The Veteran's personnel records confirm that he was stationed at Camp Lejeune from October 18, 1974 to November 12, 1974 and again from May 7, 1975 to October 15, 1975. VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1957 through December 1987 were potentially exposed to drinking contaminated water with volatile organic compounds (VOCs), including trichloroethylene (TCE), perchloroethylene (PCE), benzine, and vinyl chloride. See M21-1 III.iii.2.E.7.a; M21-1 IV.ii.2.C.5.j. Based on analyses of potential exposures at Camp Lejeune and scientific studies involving these chemicals, the National Academy of Sciences National Research Council (NRC) provided an assessment of the potential association between certain diseases and exposure to the chemical contaminants TCE and PCE. Fourteen diseases were placed into the category of limited/suggestive evidence of an association: esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects. See M21-1 IV.ii.2.C.5.p. VBA has determined that manifestation of any of these diseases in a veteran with verified Camp Lejeune service between 1957 and 1987 is sufficient to request a VA medical examination and an opinion regarding its relationship to Camp Lejeune service. See M21-1 IV.ii.2.C.12.f. Effective March 14, 2017, VA amended its adjudication regulations relating to presumptive service connection, adding eight diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953, to December 31, 1987. See 82 Federal Register 4173 (January 13, 2017). This final rule establishes presumptive service connection for Veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) during this period, and who have been diagnosed with any of the following eight diseases: adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin's lymphoma, and Parkinson's disease. Specifically, the rulemaking amends 38 C.F.R. §§ 3.307 and 3.309. Id. Thus, even accepting the Veteran's contention of at least 30 days of service at Camp Lejeune, nonetheless, vascular spasms to include peripheral neuropathy is not among the eight listed diseases for presumptive service connection in the new rule. The Veteran has a current diagnosis of vascular spasms (or peripheral neuropathy) that affects the lower extremities. However, review of the Veteran's service treatment records is unremarkable for mention of any complaints, treatment or diagnoses related to his disability and his exposure to contaminated water. His separation examination in October 1975 noted normal lower extremities and normal neurological evaluation. In July 2014, the Veteran submitted an article relating to health effects linked with TCE, PCE, benzene and VC exposure. The article reported possible health problems due to exposure also include neurological effects, specifically delayed reaction, problems with short term memory, visual perception, attention, and color vision). The Veteran also submitted a 2009 National Research Council (NRC) report regarding contaminated drinking water at Camp Lejeune, that found "limited/suggestive" evidence of an association between mixed solvents and neurobehavioral effects such as fatigue, lack of coordination, sensory disturbances, confusion, depression, tension, trouble concentrating, headache. The Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if it discusses 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 lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). The article submitted by the Veteran is not accompanied by the opinion of any medical expert and does not apply to his specific case. It provides only general information rather than a generic relationship with a degree of certainty such that, under the facts of this specific case, there is at least plausible causality between the Veteran's injury in service and the later development of his peripheral neuropathy. Therefore, the articles submitted by the Veteran are insufficient to establish service connection. While the Veteran's exposure to contaminated water is presumed, his claim is being denied because he does not have a disease that is presumptively linked to his presumed exposure, and he has not advanced any medical evidence that would like it at least as likely as not (50 percent or greater) that his disability was the result of his presumed exposure to contaminated water. Accordingly, the Board finds that the claim of entitlement to service connection for a condition manifested by vascular spasms to include peripheral neuropathy of the bilateral lower extremities is denied. (CONTINUED ON NEXT PAGE) ORDER New and material evidence has been received to reopen a previously denied claim of entitlement to service connection for vascular spasms to include peripheral neuropathy of the bilateral lower extremities and the matter is reopened. Service connection for vascular spasms to include peripheral neuropathy of the bilateral lower extremities is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs