Citation Nr: 20009755 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 16-45 707 DATE: February 6, 2020 ORDER Entitlement to service connection for Sjogren’s syndrome is denied. Entitlement to service connection for lupus is denied. Entitlement to service connection for inflammatory/toxic neuropathy is denied. FINDINGS OF FACT 1. The appellant’s Sjogren’s syndrome was not incurred in or otherwise causally related to his active service, to include exposure to chemicals at Fort McClellan. 2. The appellant’s lupus was not incurred in or otherwise causally related to his active service, to include exposure to chemicals at Fort McClellan; and such did not manifest to a compensable degree within one year of separation. 3. The appellant’s inflammatory/toxic neuropathy was not incurred in or otherwise causally related to his active service, to include exposure to chemicals at Fort McClellan; and such did not manifest to a compensable degree within one year of separation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for Sjogren’s syndrome have not been met. 38 U.S.C. §§ 1131; 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for entitlement to service connection for lupus have not been met. 38 U.S.C. §§ 1131; 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for inflammatory/toxic neuropathy have not been met. 38 U.S.C. §§ 1131; 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the U.S. Army from March 1986 to March 1989. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied service connection for lupus, inflammatory or toxic neuropathy, and Sjogren’s syndrome. The appellant filed a timely Notice of Disagreement (NOD), received in February 2016. A Statement of the Case (SOC) was issued in August 2016. A timely substantive appeal was received in September 2016. The Board notes that the Veteran’s February 2016 NOD included the issues of service connection for posttraumatic stress disorder (PTSD), left cheek melanoma excision scar, tinnitus, and melanocytic nevi excision scars. In an August 2016 rating decision, however, the RO granted ser vice connection for PTSD, left cheek melanoma excision scar, tinnitus, and melanocytic nevi excision scars. This constitutes a full award of the benefit sought on appeal with respect to these claims. As the appellant did not initiate an appeal with the downstream elements of initial ratings or effective dates, those matters are not in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). The appellant requested, and was scheduled for, a July 2019 hearing by videoconference before a Veterans Law Judge. However, a review of the record reveals that he failed to appear without explanation. Thus, his request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.702(d). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “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) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including systematic lupus erythematosus and other organic diseases of the nervous system, such as peripheral neuropathy, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Background The appellant contends that he was exposed to chemicals while serving at Fort McLellan, which led to the development of his currently-diagnosed lupus, neuropathy, and Sjogren’s syndrome. He has denied a family history of any such disability and has denied any other exposures to chemicals. The appellant’s Military Occupational Specialty (MOS) was Military Police. Service personnel records indicate that the appellant served at Fort McClellan from March 1986 to July 1986. Service treatmentrecords are negative for pertinent complaints or observations. The appellant waived his right to a separation examination in January 1989. A medical officer reviewed the appellant’s records in March 1989 and determined that a separation examination was not required. The post-service record on appeal includes an August 2013 clinical note from Dr. R.D. who states that, following nerve conduction study (NCS) testing, there was evidence that the appellant’s right superficial peroneal neuropathy may be due to local trauma or other cause for mononeuropathy and that there was no indication of diffuse peripheral neuropathy involving large nerve fibers on the limited nerve conduction study of the right lower limb. Small fiber neuropathy could not be excluded based on these findings. The appellant refused further NCS testing and completely refused EMG testing. The assessment was inflammatory and toxic neuropathy, consider positive SSA and ANA antibodies and history of sicca symptoms which may indicate an autoimmune underlying etiology such as Sjogren’s syndrome. A September 2013 clinical note from Dr. J.F. states that the appellant had positive ANA and SSA tests and he had painful peripheral neuropathy. With respect to family history, the appellant stated that he did not know his mother, his father had shortness of breath, used a walker, and had some neuropathy, his half-sister was doing okay, and his own children were healthy. The appellant denied significant exposure to the woods of Wisconsin. The assessment was neuropathy with positive ANA and SSA. The appellant was provided literature regarding lupus and Sjogren’s syndrome. A February 2015 statement from the appellant’s physician, Dr. P.H., states that the appellant had been diagnosed with, inter alia, inflammatory and toxic peripheral neuropathy of unknown etiology, SSA and ANA antibody positive sicca syndrome, and chronic fatigue for more than eight years. Dr. P.H. stated that he had been treating the appellant for the past year and that it was his understanding that the appellant was in the military in the 1980s or 1990s, stationed at Fort McClellan, with potential exposure to a number of toxic chemicals. A March 2015 clinical note from Dr. S.V. states that the appellant had a history of peripheral neuropathy which was apparently related to exposure to toxic substances while in the military. In a statement received in April 2015, the appellant contended that, while he served at Fort McClellan from March 1986 to July 1986, he was unknowingly exposed to toxins by eating the food, drinking the water, showering, inhalation, and digging foxholes all over the post. He reported that his physicians have not been able to find other reasons that he developed his claimed disabilities. His primary care physician described such as of unknown etiology. The appellant reported that his pre-service job was at a fast food restaurant and that, following separation, he worked for the Department of Corrections and in retail loss prevention. The appellant contended that he was exposed to radioactive compounds cesium-137 and cobalt-60 during decontamination training activities on base, chemical warfare agents, such as mustard gas and nerve agents, and airborne polychlorinated biphenyls (PCB) which had been dumped by the nearby Monsanto chemical plant from 1929 to 1971. The appellant reported that lupus and Sjogren’s syndrome, of unknown etiology, were diagnosed in 2013, he also had been diagnosed with inflammatory and toxic peripheral neuropathy of unknown etiology, and that he melanoma was diagnosed in 1997. In February 2016, the appellant reported that his doctor described his disabilities as of unknown origin. However, after the appellant discussed toxic chemical exposure at Fort McClellan, his doctor insisted that such was the cause of his disabilities. The appellant was afforded VA examination in May 2016. The claims file was reviewed. Inflammatory and toxic neuropathy, unspecified, with neuropathic foot pain, Sjogren’s syndrome, and systemic lupus erythematosus were diagnosed. The appellant reported that there was no family history of autoimmune diseases such as lupus. After examining the appellant and reviewing the claims file, the VA physician opined that it was less likely than not that neuropathy, Sjogren’s syndrome or lupus were incurred in or otherwise causally related to the appellant’s active service, to include exposure to known environmental hazards present at Fort McClellan. There was no in-service treatment for exposure to environmental hazards, nor was any such exposure reported in December 1986. While exposure to high levels of compounds has been shown to cause adverse health effects, there is no evidence that exposures of such magnitude occurred at Fort McClellan. While foot blisters, infection, and tendinitis were treated in service, there was no chronic foot disability present. In his September 2016 substantive appeal, the appellant reported that he had no exposure to chemicals, chemical weapons, or radiation. He also noted that he had no family history of the illnesses for which he claimed service connection. Analysis The Board finds that the preponderance of the evidence is against the award of service connection for lupus, inflammatory/toxic neuropathy, or Sjogren’s syndrome. As noted supra, service treatment records are negative for pertinent complaints or observations; and the appellant waived his right to a separation examination and it was determined that, following review of his medical records, that such an examination was not necessary. There is no indication, nor is it contended, that lupus or neuropathy manifest to a compensable degree within one year of separation. Thus, service connection on a presumptive basis is not for application. 38 C.F.R. §§ 3.307, 3.309. To the extent that Sjogren’s syndrome may be an organic disease of the nervous system, there is likewise no indication nor contention that such manifest to a compensable degree within one year of separation. Id. The Board has considered the February 2015 statement from Dr. P.H. and the March 2015 note from Dr. S.V. Dr. P.H. indicated that the appellant’s neuropathy was of unknown etiology. While he stated that it was his understanding that the appellant was potentially exposed to a number of toxic chemicals while stationed at Fort McClellan, no opinion whether such potential exposure caused a current disability was offered. Further, the statement regarding potential exposure to toxic chemicals is speculative; and no rationale was offered. Likewise, Dr. S.V.’s statement that the appellant’s peripheral neuropathy was apparently related to exposure to toxic substances while in the military is speculative and lacks a rationale, which limits its probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board affords greater probative weight to the opinion of the May 2016 VA examiner that it was less likely than not that neuropathy, Sjogren’s syndrome or lupus were incurred in or otherwise causally related to the appellant’s active service, to include exposure to known environmental hazards present at Fort McClellan. That opinion was based on a clinical examination of the appellant, a review of the claims file, consideration of the relevant medical history, and the opinion was accompanied by a rationale which is consistent with the evidence of record. Id. The examiner noted that, exposure to high levels of compounds has been shown to cause adverse health effects, but there was no evidence that the appellant was exposed at such magnitude while serving at Fort McClellan. A VA internet-source report noted that some members of the U.S. Army Chemical Corp School, Army Combat Development Command Chemical/Biological/Radiological Agency, Army Military Police School, and Women’s Army Corps, among others, may have been exposed to one or more of several hazardous materials, likely at low levels, during their service at Fort McClellan. Potential exposures could have included but are not limited to: radioactive compounds (cesium-137 and cobalt-60) used in decontamination training activities in isolated locations on base, chemical warfare agents (mustard gas and nerve agents) used in decontamination testing activities in isolated locations on base, and airborne polychlorinated biphenyls (PCBs) from the Monsanto plant in the neighboring town. Although exposures to high levels of these compounds, it was noted, had been shown to cause a variety of adverse health effects in humans and laboratory animals, there was no evidence of exposures of this magnitude having occurred at Fort McClellan. It was specifically noted that there were currently no adverse health conditions associated with service at Fort McClellan. Specifically, the report stated: From 1929 to 1971, an off-post Monsanto chemical plant operated south of Fort McClellan in Anniston. PCBs from the plant entered into the environment, and the surrounding community was exposed. Since the 1990s, several investigations have been conducted to characterize the exposure of Anniston residents to PCBs from the Monsanto plant. In 2015, the Agency for Toxic Substances and Disease Registry (ATSDR) published an assessment of the potential health risks caused by airborne PCBs in Anniston and concluded that the concentrations found were “not expected to result in an increased cancer risk or other harmful health effects in people living in the neighborhoods outside of the perimeter of the former PCT manufacturing facility.” Accordingly, exposure to toxic chemicals at Fort McClellan is not presumed by VA. Furthermore, the appellant was not present at Fort McClellan until 1986, approximately fifteen years after the plant ceased operation. See https://www.publichealth.va.gov/exposures/fort-mcclellan/index.asp (last accessed 31 January 2020). The appellant submitted research of his own in September 2016, including (a) an August 2003 article regarding a settlement paid by Solutia Inc. and the Monsanto Company due to PCB contamination; (b) a 2013 bill which had been introduced in the House of Representatives, but not enacted, which would have created a Fort McClellan Health Registry; and (c) lists of disabilities from a website titled www.fortmcclellantoxicexposure.com which appear to indicate that such can be caused by PCB and other chemical exposures. However, these documents are general in nature and provide no indication as to whether the appellant himself was exposed to chemicals, and if so, whether such exposure was the cause of the development of a current disability. The appellant also submitted a prior Board decision in which entitlement to service connection was granted for the cause of the Veteran’s death, thyroid cancer, due to conceded exposure to Agent Orange at Fort McClellan. Board decisions, however, are not precedential, and “previously issued Board decisions will be considered binding only with regard to the specific case decided.” 38 C.F.R. § 20.1303. “Each case presented to the Board will be decided on the basis of the individual facts of the case.” Id. Nonetheless, the Board has reviewed such prior Board decision. The Veteran who was the subject of this prior decision served on active duty between 1971 and 1975, while the appellant in this case served more than a decade later. Further, the grant was based on the specific facts of the case, including the results of blood testing, and the diagnosis of thyroid cancer, a different disability than the appellant has claimed. While the appellant has reported that he has no family history of these disabilities, and contends that he was exposed to radioactive compounds cesium-137 and cobalt-60 during decontamination training activities on base, chemical warfare agents, such as mustard gas and nerve agents, and airborne polychlorinated biphenyls (PCB) which had been dumped by the nearby Monsanto chemical plant from 1929 to 1971, see e.g. April 2015 statement, there is no indication, aside from his conclusory, lay contentions, that he was in fact exposed to such during service. The appellant has not been shown to be competent to identify chemicals, by sight, touch, or any other of his own senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also 38 C.F.R. § 3.159(a)(2). Further, a layperson’s generalized assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010). In any event, even if exposure to these chemicals was conceded, the appellant is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. The Board finds the VA examination report and medical opinion to be of greater probative weight than the appellant’s lay assertions. In sum, the most probative evidence establishes that the appellant’s lupus, inflammatory/toxic neuropathy, and Sjogren’s syndrome were neither incurred in nor causally related to his active service, to include potential exposures at Fort McClellan. As the evidence preponderates against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Behlen, 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.