Citation Nr: 1824937 Decision Date: 04/23/18 Archive Date: 05/03/18 DOCKET NO. 14-24 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) or due to herbicide exposure. 3. Entitlement to service connection for a left lower extremity disability, to include as secondary to service-connected right foot metatarsalgia, or due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from February 1977 to September 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2012 and June 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in April 2015. A transcript of this hearing is of record. This case was previously before the Board in April 2016 when it was remanded for additional development. The case has now returned to the Board for further appellate action. In December 2011, the Veteran filed a claim for entitlement to nonservice-connected pension. The record does not indicate that this claim has been adjudicated and in June 2016 the Veteran's representative specifically requested that the Agency of Original Jurisdiction (AOJ) adjudicate the pension claim. The Board does not have jurisdiction over this matter and it is referred to the AOJ for the appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. The Veteran was not exposed to herbicide agents during active duty service. 2. Diabetes mellitus was demonstrated years after service and is not etiologically related to a disease or injury in service, including exposure to herbicide agents. 3. Obstructive sleep apnea (OSA) was demonstrated years after service, is not etiologically related to a disease or injury in service, including exposure to herbicide agents, and is not caused or aggravated by a service-connected disability. 4. A left lower extremity disability was demonstrated years after service, is not etiologically related to a disease or injury in service, including exposure to herbicide agents, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by active service, nor may its incurrence or aggravation be presumed. 38 U.S.C. §§ 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. OSA was not incurred in or aggravated by active service or a service-connected disability. 38 U.S.C. §§ 1131, 1137; 38 C.F.R. §§ 3.303, 3.310. 3. A left lower extremity was not incurred in or aggravated by active service or a service-connected disability. 38 U.S.C. §§ 1131, 1137; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran has alleged some procedural errors with respect to the hearing conducted before the undersigned VLJ in April 2015. In a February 2018 statement, the Veteran identified two irregularities; first, that the hearing transcript is incorrect in referring to the hearing as taking place via videoconference and second, that she was not provided an audio recording of the hearing in compliance with an October 2017 request under the Privacy Act. With respect to the Veteran's first contention, the record establishes that the April 2015 hearing was in fact conducted by videoconference. The Veteran specifically requested a videoconference hearing on her June 2014 and November 2014 substantive appeals and was notified in a February 2015 letter that her video hearing had been scheduled. The Veteran also informed VA in a March 2015 response form that she would attend the scheduled video hearing. VA's internal database states that the hearing was held as a videoconference, and the transcript reflects the VLJ's statements that the hearing was held in the video format. The February 2018 statement from the Veteran includes her recollections that the VLJ was physically present with her in the hearing room, but all the objective evidence establishes that the hearing was performed via videoconference technology. To the extent the Veteran contends that the transcript contains other inaccuracies and missing information, she has not provided any details on what she believes is missing to allow the Board to determine whether these contentions have merit. The hearing transcript is on its face complete and does not indicate that the recording was stopped at any time. The Board therefore finds that the April 2015 hearing transcript is an accurate record of what was said on the record at the Veteran's videoconference hearing. The Board will now turn to the Veteran's other contention that VA failed to provide her an audio recording of the April 2015 hearing. The Veteran's request for an audio recording of the hearing was received in October 2017 and VA acknowledged the request in a November 2017 letter. The November 2017 letter specified that VA was able to provide records of 10 pages or more on a compact disc (CD) and records fewer than 10 pages in paper form. The notice letter did not state that audio recordings of hearings were available. A VA employee also contacted the Veteran by telephone in February 2018 and left a voicemail message informing her that VA was unable to provide an audio recording of the hearing. The Veteran was provided a paper copy of the hearing transcript in March 2018 and VA has therefore complied with her request to the fullest extent possible. Based on the above, the Board finds that VA has not committed any procedural error in the context of the April 2015 videoconference hearing and there is no reason to remand or further delay a final decision in this case. Service Connection Claims Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(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). Diabetes Mellitus The Veteran contends that service connection is warranted for diabetes mellitus as it is the result of exposure to herbicide agents during active duty service at Lowry Air Force Base (Lowry AFB) in Colorado. The Veteran testified in April 2015 that information she received from the internet established that Agent Orange and other herbicide agents were stored at Lowry AFB and contaminated the ground soil and water. She also testified that she was assigned to a cleanup crew at Lowry AFB and was therefore exposed to contaminated soil through these service duties. The record establishes the first element of service connection-a chronic disability. Diabetes mellitus was first diagnosed at the Durham VA Medical Center (VAMC) in May 2011. There is some inconsistency in the VA treatment records regarding whether the Veteran has type I or type II diabetes, but a VA examiner confirmed the Veteran's diagnosis of type I diabetes mellitus in a November 2016 VA examination report. The Board must now determine whether the record demonstrates the presence of an in-service injury. Service treatment records are negative for complaints or treatment related to diabetes mellitus. Blood testing in February 1977 demonstrated a Glucose-6-phosphate dehydrogenase deficiency (G6PD deficiency) and a possible sensitivity to oxidizing drugs. However, there is no indication that the Veteran's blood sugar levels were elevated or any other evidence of diabetes during service. All systems were normal at the June 1997 special examination a few months before discharge from active duty and laboratory testing showed normal blood sugar levels. The Veteran also denied a history of sugar or albumin in her urine on the accompanying report of medical history. Thus, service records do not indicate the incurrence of diabetes or its symptoms during active duty. The Veteran contends exposure to herbicide agents through her active duty service at Lowry AFB in Colorado. VA regulations provide for a presumption of service connection for some diseases associated with exposure to certain herbicide agents, including diabetes mellitus. 38 C.F.R. §§ 3.307, 3.309 (2017). However, the presumptions are only applicable to veterans who served in the Republic of Vietnam from January 1962 to May 1975 or operated in or near the Korean Demilitarized Zone (DMZ) from April 1968 to August 1971. 38 C.F.R. § 3.307(a)(6)(iii) and (iv). The Veteran did not have any foreign service during her seven months of active duty and does not allege that she was present in Vietnam or Korea during the appropriate dates. Despite the inapplicability of presumptive service connection based on herbicide agent exposure, service connection is still possible in this case if the evidence establishes that the Veteran's diabetes is directly related to herbicide agent exposure. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (when the evidence does not warrant presumptive service connection, an appellant is not precluded from establishing service connection with proof of direct causation). After review of the record, the Board finds that the Veteran was not exposed to herbicide agents during active duty service. Information received from the Department of Defense (DoD) Compensation Services in June 2017 establishes that "DoD has not identified Lowry AFB as a location where Agent Orange was used, tested, stored, or transported... Additionally, [Lowry AFB] was not on the Agent Orange shipping supply line, which went directly from storage at Gulfport, Mississippi to South Vietnam via merchant ships." DoD compensation services also noted that "all use of Agent Orange by the US military was terminated in 1971, six years before your Veteran's claimed exposure." VA also attempted to verify the Veteran's reports of herbicide agent exposure by contacting the Air Force Historical Research Agency (AFHRA). In November 2017, the AFHRA notified VA that tactical herbicides were not "used, stored, or tested at Lowery AFB." In support of her contentions, the Veteran submitted two internet articles; one from Wikipedia noting that a December 2006 DoD report listed Agent Orange testing, storage, and disposal at 32 locations throughout the United States, and the other from a private website finding that a 1992 DoD hazardous waste survey noted some military bases had significant water or soil contamination. The Veteran also submitted the transcript of a March 2000 DoD news briefing from an Air Force physician discussing the use of herbicide agents in association with Project Ranch Hand in Vietnam. The Board finds that the information submitted by the Veteran is general in nature, and in the case of the March 2000 news briefing, does not pertain to her current appeal. This evidence is therefore of reduced probative value and does not outweigh the findings of DoD Compensation Services and the AFHRA. See Wallin v. West, 11 Vet. App. 509, 514 (1998) (finding that in order to establish service connection by means of treatise evidence, such evidence must "not simply provide speculative generic statements not relevant to the veteran's claim."); see also Sacks v. West, 11 Vet. App. 314, 317 (1998). With respect to the March 2000 transcript of testimony from an Air Force physician, this testimony pertains only to the use of herbicide agents in Vietnam and is therefore inapplicable to the current claim. The Wikipedia article, while referencing the storage of herbicide agents in the United States, does not provide any details as to the locations where the herbicide agents were kept and does not address the specific question in this case: whether the Veteran was exposed to herbicide agents while serving at Lowry AFB in 1977. Similarly, the article from a private website (titled Life in the Times) includes Lowry AFB on a list of bases with general soil and water contamination according to a DoD hazardous waste survey dating from 1992. The information submitted by the Veteran does not include any actual DoD findings and the article notes that the report "contains no explanation of the problems at each base..." The report also dates from 1992, a period of 15 years after the Veteran's active service. The Board therefore finds that the internet articles and information submitted by the Veteran is of little probative value and is clearly outweighed by the service department information which establishes that herbicide agents were not present at Lowry AFB during the Veteran's period of active military service. Although the Veteran was not exposed to herbicide agents during active service, service connection is still possible for diabetes mellitus as a chronic disease. For veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, such as diabetes mellitus, are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1131, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). The record establishes a diagnosis of diabetes mellitus, but there is no evidence that it manifested to a compensable degree within a year from the Veteran's separation from service. The Veteran's blood sugar levels were normal at the June 1977 special examination and she denied any diabetes-related complaints on the accompanying report of medical history. There is also no lay or medical evidence of diabetes mellitus until May 2011, more than 30 years after the Veteran's discharge from service. The Veteran also denied any past history of diabetes upon her initial VAMC evaluation in January 2011. She specifically requested diabetes screening from her private physician in May 2004 due to a clear family history of the condition, but this testing was apparently negative. As diabetes mellitus was not present until May 2011, service connection for diabetes mellitus on a presumptive basis as a chronic disease is not warranted. The Board has also considered whether there is any other evidence of a link between the Veteran's diabetes mellitus and an incident of active duty service. She has not alleged any other service injuries to account for his current diabetes and service records are negative for findings or symptoms of this condition. There is also no lay or medical evidence of diabetes until decades after the Veteran's separation from service. Finally, the record is negative for any competent medical evidence in support of the claim, to include any statements from the Veteran's treating VA or private physicians. The Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C. § 5107(b). Sleep Apnea and Left Lower Extremity The Veteran contends that service connection is warranted for OSA and a left lower extremity disability as secondary to service-connected PTSD and right foot metatarsalgia, or in the alternative, as directly due to active service herbicide agent exposure. Service connection is provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Turning first to the Veteran's contentions regarding secondary service connection, the record establishes current diagnoses. OSA was diagnosed following a July 2004 private sleep study and a December 2012 VAMC polysomnogram. With respect to the left lower extremity, a December 2012 VAMC X-ray showed slight degenerative joint disease of the left great toe. The Veteran has also complained of left lower extremity neurological impairment with pain and loss of sensation, but neurological testing of the extremity throughout the claims period has been normal, to include a private nerve conduction study in July 2004 and VA neurological examinations in July 2012 and November 2016. The Veteran is competent to report her symptoms, but the Board finds that the objective medical evidence and testing is more persuasive regarding the presence of any current neurological disabilities. The record therefore establishes the presence of chronic OSA and arthritis of the left great toe. The Board finds that the competent medical evidence of record does not demonstrate a relationship between the Veteran's sleep apnea, foot arthritis and a service-connected disability. None of the Veteran's treating physicians have identified a nexus between these conditions and a service-connected disability, including PTSD and right foot metatarsalgia. The Veteran's PTSD is manifested by sleep impairment, but the record does not contain competent evidence of causation or aggravation of the diagnosed OSA by the Veteran's PTSD. Additionally, while the Veteran testified in April 2015 that her left foot problems are the result of shifting weight from her right foot to her left, VAMC treatment records document a consistently normal gait since 2011. VA examiners in September 2014 and November 2016 also provided opinions against the claims. The November 2016 VA examiner was unable to identify any abnormality with the Veteran's left lower extremity, and the September 2014 and November 2016 VA examiners found that the Veteran's OSA was not caused or aggravated by service-connected PTSD. Both examiners noted that OSA was the result of anatomical variations and defects of the respiratory system that were unrelated to PTSD. The September 2014 VA examiner noted that PTSD can cause insomnia, but this is a separate condition from sleep apnea. In sum, there is no competent medical evidence that the claimed disabilities are caused or aggravated by a service-connected disability. The Board has also considered the statements of the Veteran in support of her claims. The Veteran is competent to report observable symptoms of disabilities, but her opinion as to the cause of the conditions simply cannot be accepted as competent evidence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case (the etiology of the claimed OSA and left foot arthritis) falls outside the realm of common knowledge of a lay person. Jandreau at 1377. Thus, while the Veteran contends that disabilities are secondary to PTSD and a right foot disability, the Board concludes that the Veteran's lay statements are outweighed by the competent medical evidence of record which weighs against service connection on a secondary basis. As a final matter, the Board must also consider whether service connection is warranted for the claimed disabilities as directly due to service. As noted above, the evidence establishes that the Veteran was not exposed to herbicide agents during active service. Service records document a complaint of fatigue in May 1977 and also contain the transcript of an August 1977 hearing noting that the Veteran often fell asleep in class during basic training. In connection with the Veteran's discharge, some of her Air Force instructors testified that she was often asleep in class as an example of her poor attitude; an instructor also testified that it was not unusual for students to fall asleep in class. The instructor stated that students had to awaken at 4:30 in the morning and multiple students fell asleep in class every day. The Veteran's systems were all normal at the June 1977 special examination and she specifically denied having any problems with sleep on the accompanying repot of medical history. The Board therefore finds that the Veteran's tendencies to fall asleep during class and a complaint of fatigue in May 1977 are not themselves indicate of a chronic sleep disorder such as OSA during service. Post-service treatment records do not document any complaints related to OSA or the left leg until July 2004, more than 25 years after active service. At that time, a private sleep study confirmed the presence of sleep apnea and the Veteran reported complaints of left-sided pain and weakness since 1998 when she fell down a flight of stairs. Private and VA treatment records also document numerous instances of post-service foot and toe injuries. Records from the Social Security Administration (SSA) document the Veteran's statements that she injured her left lower extremity in a fall down some stairs in 1998, sustained a crushing injury to the left big toe in 1999 when she worked as a teacher, injured her left ankle in 2001 in a motor vehicle accident, and sustained further injuries in falls in 2001and November 2008. The absence of lay or medical evidence of the claimed disability for many years after service is a factor weighing against the Veteran's claims for direct service connection. The Board also observes that there is no competent medical evidence in support of the claim for direct service connection and none of the Veteran's physicians have identified a link between the Veteran's OSA, left foot arthritis, and active service. The Veteran's testimony and statements indicate a history of continuous symptoms of sleep apnea and left lower extremity pain since service. The Board acknowledges that the Veteran is competent to report the existence of sleep problems, including snoring and left foot pain since service. Statements of continuous symptoms can support the claim for service connection for both disabilities on appeal. See 38 C.F.R. §§ 3.303 and Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, however, the Board finds that the Veteran's statements regarding continuous symptoms since service are not credible as they conflict with the other evidence of record, including the history of her conditions reported while receiving medical care. As noted above, the Veteran denied having sleep problems or left lower extremity issues on the June 1977 report of medical history and she never reported the in-service incurrence of the disabilities on appeal until her claims for VA compensation were received. Prior to that time, the Veteran and all her treating healthcare providers dated the onset of her symptoms to several decades after service, and with respect to the left foot, to numerous post-service injuries. The Board finds that the Veteran's statements given in the context of receiving contemporaneous medical treatment are more credible than those provided decades later for compensation purposes. Given the conflict between the lay evidence regarding the onset of symptoms, the Board finds the Veteran's more recent history of continuous symptoms since service is not credible. In sum, the record shows that the first evidence of the Veteran's claimed disabilities was many years after her separation from active duty. In addition, the competent medical evidence does not establish that OSA or left foot arthritis was incurred secondary to a service-connected disability or directly due to active service. The Board therefore concludes that the evidence is against a nexus between the Veteran's disabilities and a service-connected disability or active duty service. The Board must conclude that the preponderance of the evidence is against the claims and they are denied. 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, is denied. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD or due to herbicide exposure, is denied. Entitlement to service connection for a left lower extremity disability, to include as secondary to service-connected right foot metatarsalgia or due to herbicide exposure, is denied. ____________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs