Citation Nr: A21020184 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 191211-58033 DATE: December 17, 2021 ORDER Readjudication of the claim for service connection for diabetes mellitus, type II, is warranted. Entitlement to service connection for diabetes mellitus type II, to include as a result of exposure to herbicides, is denied. Entitlement to service connection for radiculopathy, left upper extremity is denied. Entitlement to service connection for radiculopathy, right upper extremity is denied. Entitlement to service connection for radiculopathy, left lower extremity is denied. Entitlement to service connection for radiculopathy, right lower extremity is denied. FINDINGS OF FACT 1. New evidence was received after the May 2016 denial that is relevant to the issue of entitlement to service connection for diabetes. 2. The Veteran was not exposed to tactical herbicide agents or toxic chemicals in service. 3. The preponderance of the evidence of record is against a finding that the Veteran's diabetes is related to service. 4. The Veteran's bilateral upper radiculopathy is not secondary to a service-connected disability. 5. The Veteran's bilateral lower radiculopathy is not secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim for service connection for diabetes are met. 38 U.S.C. § 7104(b); 38 C.F.R. § 3.156(d) (2020). 2. The criteria for service connection for diabetes mellitus is not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for bilateral upper radiculopathy, as secondary to diabetes, is not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 4. The criteria for service connection for bilateral lower radiculopathy, as secondary to diabetes, is not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1983 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) originally on appeal of a September 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) under the legacy appeals review system. In October 2019, the RO issued a Statement of the Case (SOC). Thereafter, the Veteran opted to participate in the Appeals Modernization Act (AMA) appeals review system by submitting a December 2019 VA Form 10182, Decision Review Request: Board Appeal. Therefore, the October 2019 SOC is the decision presently on appeal. In the December 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. A hearing was held in July 2021. In light of the above, the Board may only consider the evidence of record at the time of the October 2019 SOC, as well as any evidence submitted by the Veteran or his representative during the hearing or within 90 days following the hearing. New and Relevant Evidence Historically, the Veteran filed a claim for diabetes in February 2016. In May 2016, service connection for diabetes was denied for lack of an event, disease, or injury in service. In December 2016, the Veteran filed a Notice of Disagreement. The Veteran did not perfect his appeal by submitting a substantive appeal after a statement of the case (SOC) was issued in September 2017. Following the September 2017 SOC, the Veteran refiled the current claim on appeal. This claim was denied in a September 2018 rating decision and October 2019 SOC for lack of new and material evidence. VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156(d). "New evidence" is defined as evidence not previously part of the actual record before agency adjudicators, and "relevant evidence" is defined as information that tends to prove or disprove a matter at issue in a claim, to include evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501(a)(1). Therefore, the question in this case is whether the VA has received new and relevant evidence after the prior final denial of the claim for service connection for diabetes. The Board finds the Veteran submitted new evidence after the prior final rating decision in the legacy system that is relevant to his claim. Namely, a statement from the Veteran's primary care physician and fellow servicemen. This evidence was not previously of record and may prove or disprove the unestablished in-service event or injury. Accordingly, the claim should be readjudicated taking into consideration all of the evidence of record. Service connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a veteran was exposed to herbicide agents during service, certain diseases are presumed to be related to that exposure. 38 C.F.R. § 3.309(e). Diabetes is one of those diseases. The Veteran asserts that he was exposed to tactical herbicides and contaminated water between January and March 1983, while undergoing basic training at Fort McClellan, Alabama. There is no presumption of exposure to tactical herbicides or contaminated water for servicemembers who were stationed at Fort McClellan. Post service treatment records show the Veteran was diagnosed with diabetes mellitus in 2007, many years after his discharge from service. The records indicate a family history of diabetes, noting that the Veteran's mother has diabetes and his father died, in part, due to complications from diabetes. See February 2016 CAPRI records. The records do not show that the diabetes mellitus is related to his active duty service. Service treatment records show no complaints, diagnosis, or treatment related to diabetes. The Veteran has not alleged that his condition began in service. Instead, he is alleging his in-service injury was exposure to tactical herbicide agents or contaminated water while stationed at Fort McClellan. Duty to Assist In May 2016, the RO made a Formal finding that there was insufficient evidence to corroborate the Veteran's alleged exposure to Agent Orange or other herbicides. This decision was based, in part, on insufficient information provided by the Veteran to allow for meaningful research. Although the Veteran has since provided additional details surrounding his allegations, the Board finds that further research is not warranted. The Veteran has only asserted that he became aware that herbicides were stored at the facility. The Veteran has not asserted that he handled barrels, cleaned spills, or otherwise saw or encountered herbicide agents or other chemicals being used at the base. As will be discussed below, the Veteran's initial statements indicating that he saw herbicide agent weed control are not credible and subsequently contradicted by the Veteran. While his doctor told him diabetes can be caused by exposure to chemicals, there is no indication that he was actually exposed. As shown below, the preponderance of the evidence is against finding that the Veteran was exposed to herbicide agents while in service. In July 2018, based on a review of the Veteran's claims file, a VA examiner found it less likely than not that the Veteran's diabetes was caused by his service. The examiner found no evidence of herbicide agent exposure. The examiner noted the statements from the Veteran's primary care physician and fellow serviceman but found no reason to believe the Veteran was exposed to herbicide agents. The examiner noted that the opinion was based on a review of the records and not a comprehensive clinical evaluation of the Veteran. The Board finds that an examination is not warranted in this case. The evidence of record does not show the Veteran had an in-service injury. Even if the Board were to assume that herbicides were stored at Fort McClellan, there is no competent or credible evidence of record indicating the Veteran was exposed to such chemicals. McLendon v. Nicholson, 20 Vet. App. 79, 81-83. In July 2021, the Veteran submitted additional articles related to chemical contamination at Fort McClellan. The Board does not find these articles probative as to whether the Veteran was actually exposed to herbicides. The articles discuss generalities and speculate about possible contamination at different times over the last 100 years at Fort McClellan. The articles state that there was chemical contamination at the base, but that VA has found no evidence of widespread contamination issues. Even if the Board found the articles probative, these articles are post-decisional evidence and cannot be used to find a pre-decisional duty to assist error that would warrant a VA examination. 38 C.F.R. § 20.802(a). Finally, the Board recognizes the Veteran reported he initially received treatment from a private physician, but these records are not associated with the claims file. The Veteran had the opportunity to authorized VA to obtain those records on their behalf or submit them in support of the claim. In July 2018, the Veteran was asked to identify and submit directly, or authorize the VA to obtain private treatment records on their behalf by submitting a VA form 21-4142, Authorization for release of information. See July 2018 Standards 5103 Notice. The records were not submitted directly nor was authorization to obtain them submitted to the VA. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA is only obligated to obtain records that are adequately identified and for which necessary releases have been submitted. 38 C.F.R. § 3.159(c)(1). Therefore, as the Veteran did not authorize the release of any additional outstanding treatment records, the Board will proceed with adjudicating the claim on appeal based on the available evidence of record. Analysis In support of his claim, the Veteran submitted a statement from his primary care physician that stated, the Veteran's "exposure to chemicals while in the military service likely contributed to his development of diabetes." See December 2016 CAPRI records. The Board places little probative weight on this statement. This opinion is based on the Veteran's reported history of being exposed to chemicals in service. While the Board may not disregard a medical opinion solely on the rationale that the opinion is based on a history given by the Veteran, the Board may reject such opinion when the facts present in the record contradict the facts provided by the Veteran. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The physician did not provide any statement as to why he agreed with the Veteran's reported exposure or state what chemicals he was exposed to when the record does not establish that he was exposed to chemicals or herbicide agents in service. Also of record is a statement from a fellow serviceman indicating that the two served in Fort McClellan together and that there were restricted areas on the base because of buried chemicals. The serviceman cited to three internet articles related to chemical exposure. These articles address the potential for chemical exposure, but do not address the Veteran. The first article is from VA's website and states that there was a potential exposure for radioactive compounds, chemical warfare agents, and airborne polychlorinated biphenyls (PCBs). The article specifically notes that the VA does not presume that any adverse health conditions are associated with service at Fort McClellan and there are currently no adverse health conditions associated with service at Fort McClellan. See https://www. publichealth.va.gov/exposures/fort-mcclellan/. The second article relates a servicemember who served at a different time than the Veteran and does not discuss diabetes. The article discusses allegations of exposure to airborne PCBs from a nearby factory and that the company had dumped the chemicals near the base. See https://www.foxnews.com/ politics/sick-veterans-who-served-at-shuttered-toxic-army-base-turn-to-congress-va-for-help. And the third article discusses contamination by a chemical plant located in an adjacent town and a proposed Bill before Congress related to Fort McClellan that has not passed. The article reiterates the VA's statements that "there is no evidence of exposures having occurred at Fort McClellan." See https://www.legalreader. com/fort-mcclellan-a-toxic-scandal. Even if the Board were to assume that contaminates were present on the base, there is no presumption of exposure for servicemembers stationed at Fort McClellan. As such, the Veteran's presence at the base alone is insufficient to establish an in-service injury. At the Veteran's July 2021 hearing, the Veteran's representative asked if he ever noticed any areas where the vegetation was all dead. The Veteran responded that he was there in the wintertime, so most of the foliage wasn't present at the time. This statement contradicts a June 2018 statement submitted by the Veteran's representative that "while on training exercises, he repeatedly walked through areas that had been cleared using herbicides and herbicides were in widespread use around the base for weed control and landscaping. See June 2018 Statement in support of claim. The Board finds the Veteran's hearing testimony more credible and probative then the previous statement that he saw herbicide agent weed control. The Veteran's testimony was given under oath and the record supports that he was stationed at Fort McClellan in the winter months when foliage would likely be dormant as described by the Veteran at the hearing. In addition, the statement from the Veteran's representative indicates that the Veteran worked in an area where Agent Orange and Agent Blue were stored and tested. However, the service personnel records indicate that the Veteran was only stationed at Fort McClellan during basic training and he was moved to Alaska following AIT. Notwithstanding this statement, the representative also cites to a Department of Defense letter noting that Agent Orange was not used, tested, or stored at any location in Alabama. As a result, the statement appears internally inconsistent. The Veteran's representative has pointed to another Board decision where it was determined that a veteran who served at Fort McClellan in 1969 was exposed to herbicides (Docket No. 09-16 193). According to the Board, in this case, there was a statement by the claimant's supervisor, an officer, confirming that he was exposed to herbicides while stationed at Fort McClellan. In that case, the veteran was on advanced individual training during the Vietnam war, and undergoing a training exercise involving a mock-up village in Vietnam. The Board added that the identity of the officer could not be determined, and it was unclear how the officer knew that herbicides had been used. No such statement exists in this case and the Veteran has not alleged that he was participating in this training. Also at the hearing, the Veteran testified that he dug holes and crawled on the ground as part of his training. The Veteran stated he did not drink water from the stream, lake, or river, but there was a chance he may have accidently swallowed mud while training. He also indicated that he was tasked with disposal of expired weapons on a range known to be in a contaminated area. To the extent the Veteran and his fellow serviceman maintain they were exposed to toxins, as lay persons they are not competent to make such determinations. The record does not show they have the requisite training to identify contamination. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While they are competent to state what they saw or experience, neither the Veteran nor his fellow serviceman have provided credible statements that they were exposed to chemicals while training at Fort McClellan. While the record establishes the Veteran was at Fort McClellan from January to March 1983, it does not establish he was exposed to herbicide agents or other toxins. The record does not demonstrate, and the Veteran has not alleged, that the Veteran's diabetes began in-service or within a year of service. The preponderance of the evidence does not establish an in-service incurrence, to include exposure to herbicide agents. Necessarily, the nexus element for direct service connection cannot be met. As a result, service connection for diabetes on a direct and presumptive basis must be denied. Bilateral radiculopathy, upper extremity Bilateral radiculopathy, lower extremity The Veteran has asserted that his radiculopathy was caused by his diabetes. See July 2021 Hearing transcript. No theory of service connection other than secondary service connection has been reasonably raised by the record or asserted by the Veteran. The evidence of record does not show the radiculopathy is related to service or any incident of service, and the Veteran submitted no evidence or argument to support that theory of entitlement. Therefore, the Board will limit its discussion to the secondary theory of entitlement. Robinson v. Peake, 21 Vet. App. 545 (2008). To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) evidence that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. (Continued on the next page) The Veteran has asserted that his radiculopathy is related to his diabetes. However, as discussed above, the Veteran has not been awarded service-connected for diabetes. Therefore, service connection as secondary to diabetes must fail as a matter of law. 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426 (1994). M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.V. Palatt, 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.