Citation Nr: 21028016 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 12-01 460 DATE: May 10, 2021 ORDER Service connection for a neurological disorder (previously claimed as residuals of a chemical brain injury) is denied. FINDINGS OF FACT 1. The Veteran has a current disability of mild cerebellar atrophy (hereinafter referred to as a neurological disorder). 2. In February 1984, during service, the Veteran splashed a full can of rust inhibitor with M-17 (Read Lead) into his mouth, eyes, and ears. 3. Symptoms of the neurological disorder were not chronic in service, were not continuous after service separation, and did not manifest to a compensable degree within one year of separation from service. 4. The neurological disorder did not have its onset in service and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a neurological disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1983 to May 1984. This matter is on appeal from a May 2011 rating decision issued by the Regional Office (RO). The Veteran testified in Washington, D.C. at a Board hearing in October 2014 before a Veterans Law Judge, who is no longer available to participate in the instant appeal. The hearing transcript has been associated with the record. In May 2017, the Veteran was notified that the Veterans Law Judge who conducted the hearing was no longer with the Board and was informed of his rights and options. Later in May 2017, the Veteran responded that he did not wish to appear at another Board hearing. This matter was most recently before the Board in December 2020. The Board remanded the issue in order to obtain an addendum opinion to assist in determining service connection for a neurological disorder. The Board requested that the VA examiner address the Veteran's behavioral symptoms immediately following the reported February 1984 event, when he splashed a full can of rust inhibitor with M-17 (Read Lead) into his mouth, eyes, and ears. A VA examination and opinion were submitted to the record in February 2021. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 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. See 38 C.F.R. § 3.303(d). In this case, the neurological disorder at issue, is an organic disease of the nervous system and, as such, listed as a "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. See 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). 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. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as a neurological disorder, 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 presumption 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. Service Connection for Neurological Disorder The Veteran contends that he was exposed to hazardous chemicals in service that caused the current neurological disorder. More specifically, the Veteran claims that he splashed a full can of rust inhibitor with M-17 (Read Lead) into his mouth, eyes, and ears during service in February 1984. October 2014 Transcript. The Veteran claims that this exposure caused psychological symptoms, which resulted in his discharge, and developed into the current neurological disorder. After a review of all the evidence, the Board finds that the Veteran has a current disability of mild cerebellar atrophy and idiopathic peripheral neuropathy, among other neurological diagnoses. See February 2021 VA Examination; August 2019 VA Examination. The evidence is in equipoise as to whether the Veteran experienced an in-service event in February 1984, namely, splashing a rust inhibitor on his face. While service treatment records do not indicate that the Veteran complained of or sought treatment for chemical exposure, since service separation, the Veteran has on various occasions reported this event of in-service chemical exposure. See generally, October 2011 Private Treatment Records; November 2011 Private Treatment Records; May 2012 Private Treatment Records; January 2013 VA Treatment Records; August 2015 Private Treatment Records; August 2019 VA Examination; September 2019 VA Treatment Records; February 2021 VA Examination. The Veteran also supplied supplemental lay statements to consistent with his own account. See March 2010 Lay Statements; April 2013 Lay Statements. As such, the Board resolves reasonable doubt in favor of the Veteran to find that during service in February 1984 he was exposed to chemicals from a rust inhibitor. The Board finds that the weight of the evidence shows that the symptoms of the neurological disorder were not chronic in service. As mentioned above, service treatment records are silent for any complaints of or treatment for a neurological disorder. According to the May 1984 service separation examination, the neurological system was in normal condition. The weight of the evidence is against finding that the symptoms of the neurological disorder were continuous after service separation or manifested to a compensable degree within one year of separation from service. The first symptoms of the neurological disorder of record are in a January 2009 statement in support of claim, approximately 24 years after service separation. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). Moreover, during the October 2014 Board hearing, the Veteran did not testify that he experienced continuous neurological symptoms after separation, but rather he testified that his first neurological diagnosis was in 2010 and that he has had an extensive history of neurological symptoms since that time. Lay statements of record indicate that the Veteran experienced continuous psychiatric symptoms since service separation, which the Veteran claims are related to the current neurological disorder, but these statements do not assert that the Veteran experienced continuous neurological symptoms since service separation and the February 2021 VA examination found that the behavioral (psychiatric) symptoms were not related to the current neurological disorder. See March 2010 Lay Statements; April 2013 Lay Statements; October 2014 Transcript; February 2021 VA Examination. The weight of the evidence shows that the neurological disorder did not have its onset in service and is not otherwise etiologically related to service. Service treatment records were not submitted to the claims filed until after the November 2019 Board remand. As previously explained in the December 2020 Board remand, prior VA examinations were inadequate because they did not take into account the Veteran's reported symptomatology and the military personnel records documenting the Veteran's behavioral changes in service after the February 1984 event. The Board finds that the February 2021 VA examination, which was conducted pursuant to the December 2020 Board remand, the most probative medical evidence in determining service connection for the neurological disorder as the VA examiner was able to review the service treatment records and provided a comprehensive addendum opinion in response to the to the December 2020 Board remand. The February 2021 VA examiner opined it was less likely than not that the current neurological disorder was incurred in or caused by the February 1984 in-service chemical exposure. The VA examiner reviewed and documented the Veteran's extensive history and cited to several references in the record. The VA examiner reasoned that the timeline of onset is difficult to correlate with the Veteran's chemical exposure to establish that the mild cerebral atrophy was caused by chemical (M-17) exposure, given the fact that the Veteran has frequently been thought to have a functional neurological syndrome. The VA examiner also reasoned that lead can be implicated in cerebellar degeneration and there is no evidence of cerebellar degeneration not on the 2003 MRI or upon current examination. The VA examiner researched other components of M-17 (red lead), finding no research to support that M-17 could have caused mild cerebral atrophy. The VA examiner concluded that there is no evidence that the exposure caused behavioral symptoms as the Veteran claims, especially with a host of normal neurological tests and repeat conclusions; rather, what the Veteran likely has is a somatoform disorder. The VA examiner explained that the nature of lead and its transient exposure in service (splash to the face) would not have caused long term behavioral symptoms and that sustained exposure is needed to maintain abnormal symptoms, which would be cerebellar in origin, as there were no findings present on the exam that was conducted that day. The VA examiner concluded that the mild cerebral atrophy is likely from age related deterioration of the cerebrum. Based on the foregoing, the preponderance of the evidence is against finding service connection for a neurological disorder; as such, the claim must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.