Citation Nr: 19166301 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 17-13 153 DATE: August 27, 2019 ORDER Service connection for fibromyalgia, to include as due to in-service polychlorinated biphenyl (PCB) exposure, is denied. Service connection for diabetes mellitus, type II, to include as due to in-service PCB exposure, is denied. Service connection for multiple sclerosis, to include as due to in-service PCB exposure, is denied. FINDINGS OF FACT 1. 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. 2. The Veteran’s diabetes mellitus, type II, did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and is not otherwise etiologically related to an in-service injury, event, or disease, to include in-service PCB exposure. 3. The Veteran’s multiple sclerosis did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and is not otherwise etiologically related to an in-service injury, event, or disease, to include in-service PCB exposure. CONCLUSIONS OF LAW 1. The criteria to establish service connection for fibromyalgia, to include as due to in-service PCB exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for diabetes mellitus, type II, to include as due to in-service PCB exposure, have not been met. 38 U.S.C. §§ 1110, 1116, 1154, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria to establish service connection for multiple sclerosis, to include as due to in-service PCB exposure, have not been met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from November 1971 through November 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by 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)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain disorders, listed as “chronic” in 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Diabetes mellitus, type II, and multiple sclerosis, constitute “chronic” diseases listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as diabetes mellitus, type II, and multiple sclerosis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for fibromyalgia, to include as due to in-service PCB exposure. The Veteran contends that her fibromyalgia was caused by her in-service PCB exposure in Fort McClellan. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. However, the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of fibromyalgia and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). An October 2013 VA examiner evaluated the Veteran and determined that there is inconsistent data to determine that the Veteran has a diagnosis of fibromyalgia. The Veteran reported that her initial diagnosis of fibromyalgia was done at a walk-in clinic. The examiner explained that fibromyalgia is typically diagnosed by a rheumatologist who performs several diagnostic blood tests to rule out other auto immune diseases, such as rheumatoid arthritis, lupus, Sjogren’s syndrome, etc., as the symptoms are similar. The examiner further explained that it was later thought that the Veteran had multiple sclerosis based on a lumbar puncture and a magnetic resonance imaging (MRI) scan of her brain. The examiner explained that the Veteran’s neurologist, at the time of the examination, believed the Veteran had a previous stroke based on her last MRI of her brain. The examiner further explained that the Veteran’s separation examination noted a left wrist dislocation (from trauma) and occasional left knee ache. The examiner explained that the Veteran had an in-service motorbike accident in July 1974 and scraped both knees and her left elbow. However, an x-ray of her left elbow was negative for fracture and her wounds were dressed. The examiner noted a sprained right ankle in October 1973, a slip and fall on her left elbow in September 1972, and a strained back in July 1972. The examiner explained that as the joints were secondary to trauma, they are not consistent with a diagnosis of fibromyalgia. While the Veteran was licensed as a registered nurse for nearly 32 years and she believes that she has a current diagnosis of fibromyalgia, she has not provided a medical analysis regarding her contention. Therefore, the Board assigns more probative value to the October 2013 VA examiner. Consequently, the claim of entitlement to service connection for fibromyalgia must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Service connection for diabetes mellitus, type II, and multiple sclerosis, to include as due to in-service PCB exposure. The Veteran contends that her diabetes mellitus, type II, and multiple sclerosis are due to her in-service PCB exposure in Fort McClellan. While the Veteran has diabetes mellitus, type II, and multiple sclerosis, which are chronic diseases under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), they were not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and were not noted in service with attributable continuity of symptomatology. Private treatment records show that the Veteran was not diagnosed with diabetes mellitus, type II, until 2000, 26 years after her separation from service and 25 years outside the applicable presumptive period. She was not diagnosed with multiple sclerosis until August 1996, 22 years after her separation from service and 15 years outside the applicable presumptive period. The Veteran indicated on her report of medical examination at separation a normal neurologic clinical evaluation. See September 1974 Report of Medical Examination. The physician indicated a negative urinalysis of albumin and sugar. Id. These medical records are highly probative both as to the Veteran’s subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran’s then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision); see also LILLY’S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). There were not sufficient manifestations to identify the disease entities as chronic in service or within the first post-service year. Therefore, service connection for diabetes mellitus, type II, and multiple sclerosis are not warranted based on the presumption in favor of chronic diseases or continuity of symptomatology. Service connection for diabetes mellitus, type II, and multiple sclerosis may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s diabetes mellitus, type II, and multiple sclerosis and an in-service injury, event or disease, to include in-service exposure to PCB. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. In a VA examination received in February 2017, the examiner opined that the Veteran’s diabetes mellitus, type II, and multiple sclerosis are less likely than not incurred or caused by her active service in Fort McClellan. The examiner explained that the Agency for Toxic Substances and Disease Registry (ATSDR) concluded that concentrations of PCB in the air at the sampling stations were low and are not expected to result in an increased cancer risk or other harmful health effects in people living in the neighborhoods outside the perimeter of the former PCB manufacturing facility. Although the Veteran is concerned that PCB inhalation may be causing her claimed conditions, upon actual investigation, PCB inhalation of the levels that the Veteran was exposed to would not be expected to cause the claimed health conditions. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As discussed above, the Veteran indicated on her report of medical examination at separation a normal neurologic clinical evaluation. See September 1974 Report of Medical Examination. The physician indicated a negative urinalysis of albumin and sugar in urine. Id. While the Veteran was licensed as a registered nurse for nearly 32 years and she believes her diabetes mellitus, type II, and multiple sclerosis are related to an in-service injury, event, or disease, to include her in-service exposure to PCB, she has not provided a medical nexus with rationale regarding her contentions. Therefore, the Board assigns more probative value to the February 2017 VA examiner. The Veteran provided medical literature describing a relationship between PCB exposure and diabetes and how chemical injury may persist years after chemical exposure has ceased. However, these articles provide general information only, and are of minimal probative value. They do not expressly address the Veteran’s contention that her exposure to PCB caused her diabetes mellitus, type II, or multiple sclerosis diagnoses. See Wallin v. West, 11 Vet. App. 509 (1998) (observing that treatise evidence cannot simply provide speculative generic statements not relevant to the veteran’s claim, but “standing alone,” must include “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” (citing Sacks v. West, 11 Vet. App. 314 (1998)). The Veteran also provided literature indicating that the veterans of Ft. McClellan were exposed to PCB, the Ft. McClellan Health Registry Act, and forum posts regarding PCB and autoimmune disorders. However, again, these articles and forum posts provide general information only, and are of minimal probative value. They do not expressly address the Veteran’s contention that her exposure to PCB caused her diabetes mellitus, type II, or multiple sclerosis diagnoses. There is no objective evidence establishing that the Veteran’s diabetes mellitus, type II, and multiple sclerosis conditions are related to an in-service injury, event or disease, to include in-service exposure to PCB. Service connection for diabetes mellitus, type II, and multiple sclerosis on a direct basis is not warranted. (Continued on the next page)   Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding that her diabetes mellitus, type II, and multiple sclerosis are causally related to her service, were chronic in service, or manifested within an applicable presumptive period. Since the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For these reasons, the claims are denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. McLendon, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.