Citation Nr: 21030813 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-05 247 DATE: May 19, 2021 ORDER The application to reopen the claim for service connection for diabetes mellitus is denied. The application to reopen the claim for service connection for a heart disability is denied. The application to reopen the claim for service connection for a liver disability is denied. Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for bilateral lower extremity diabetic neuropathy is denied. Entitlement to service connection for left leg below the knee amputation is denied. FINDINGS OF FACT 1. In an unappealed December 2003 decision, the Board denied service connection for diabetes mellitus. 2. Evidence received since the December 2003 decision does not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for diabetes mellitus. 3. In an unappealed April 2002 decision, the RO denied service connection for a heart disability. 4. Evidence received since the April 2002 decision does not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a heart disability. 5. In an unappealed April 2002 decision, the RO denied service connection for a liver disability. 6. Evidence received since the April 2002 decision does not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a liver disability. 7. The Veteran was not exposed to herbicide agents during service. 8. The Veteran's prostate cancer is not shown to be caused or etiologically related to his active military service. 9. The Veteran's bilateral lower extremity diabetic neuropathy is not shown to be caused or etiologically related to his active military service. 10. The Veteran's left leg below the knee amputation is not shown to be caused or etiologically related to his active military service. CONCLUSIONS OF LAW 1. The December 2003 Board decision denying service connection for diabetes mellitus, is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 19.129, 19.192. 2. New and material evidence has not been received and the claim for service connection for diabetes mellitus is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The April 2002 rating decision denying service connection for a heart disability is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 19.129, 19.192. 4. New and material evidence has not been received and the claim for service connection for a heart disability is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 5. The April 2002 rating decision denying service connection for a liver disability is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 19.129, 19.192. 6. New and material evidence has not been received and the claim for service connection for a liver disability is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 7. The criteria for service connection for prostate cancer are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 8. The criteria for service connection for bilateral lower extremity diabetic neuropathy are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 9. The criteria for service connection for left leg below the knee amputation are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from February 1961 to April 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021 Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. Service Connection New and Material Criteria Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA will reopen the claim and review the former disposition of the claim. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Service Connection Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962, and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. 1. The application to reopen the claim for service connection for diabetes mellitus is denied. 2. The application to reopen the claim for service connection for a heart disability is denied. 3. The application to reopen the claim for service connection for a liver disability is denied. In April 2002, the RO denied the Veteran's claim for entitlement to service connection for a heart disability and for a liver disability. The Veteran was notified of this denial in a letter in April 2002, but did not appeal, and did not submit new and material evidence within the one year appeal period. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (presumption of regularity applies to RO's mailing of a VA decision to a veteran). Therefore, this denial became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In its April 2002 denial, the RO indicated the Veteran's STRs show no evidence of a heart or liver condition during service. There was no evidence of either condition during service, or of continuity of a condition dating back from service to present. In December 2003, the Board denied service connection for diabetes mellitus. The denial acknowledged that the Veteran had been assigned to the 6313 Air Police Squadron in Okinawa, Japan from July 1971 to January 1963. He had reported the areas along the perimeter and weapons storage areas, were overgrown with grass that was normally sprayed to clear it away and control its growth. He recalled an instance where the grass was dead and subsequently two of the K9 dogs from his unit died from cancer. In February 2003, a consultant with VA's Compensation and Pension Service responded to an RO request for verification that herbicides were used at military sites in Okinawa. The consultant stated the Department of Defense provided VA with an inventory of herbicide operations at specific times and geographic locations estimated to reflect 70 to 85 percent of herbicide use, testing and disposal locations other than those in Vietnam. The inventory showed no instance of herbicide testing, use or disposal in either Japan, or Rome, NY, locations where the Veteran was stationed during service. His STRs are void for any reports of hyperglycemia or diabetes. He was first found to have hyperglycemia in December 1995 and shortly thereafter was diagnosed with diabetes. The Board concluded there is no indication of a relationship between the Veteran's time in service and his diabetes. In July 2014, the Veteran filed to reopen his claims for service connection. He asserted he was exposed to herbicides in Okinawa, Japan, stating the area along the perimeter and weapons storage area was patrolled by K9's, and was overgrown with grass, that was regularly sprayed with herbicides. His contentions are duplicative of those he made at the time of the prior final denials. In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence received since the 2002 and 2003 denial's include statements in support, medical records, and testimony at a Board hearing. The Veteran asserted he was exposed to herbicides while stationed in Okinawa Japan, that then led to his development of diabetes mellitus, and a heart and liver disability. In July 2015, an updated list from the Department of Defense's inventory of herbicide operations, was obtained. Neither Japan nor Rome, NY, are included as locations where herbicides were used or stored. The Veteran submitted various articles in support of his claim. A September 2011 article titled US Military Defoliants on Okinawa: Agent Orange. This article sites to a 1998 San Diego RO rating decision granting service connection on the basis of exposure to herbicides in Japan. Another ruling cited is a November 2009 RO decision; though VA rejected the claim, it found that records pertaining to Operation Red Hat show herbicide agents were stored and later disposed in Okinawa. Operation Red Hat removed stockpiles of over 12,000 tons of bi-chemical weapons from Okinawa to Johnston Island. The article discusses a handful of Veteran accounts of seeing large orange barrels in Okinawa. Another article, from June 2012, Growing Evidence of Agent Orange in Japan, discusses the allegations that Agent Orange was stored in Japan. A reference to the Department of Defense's lack of acknowledgement of the use of Agent Orange was noted. In another article from November 2011, it is noted there have been service members who have reported using defoliants in Japan. The article touches on the lack of acknowledgment by the U.S. Government on the use of herbicides in Japan. These articles are not specific to the Veteran or his experiences. Citations to prior RO decisions are not specific to the Veteran and do not tend to show the Veteran was actually exposed to herbicides in service. The various reported eye-witness accounts of orange barrels being seen in Japan, even if accepted as a true statement, are not evidence that the Veteran was actually exposed to herbicides while stationed in Okinawa. Furthermore, each case is decided on the basis of the individual facts in light of the applicable law and regulations. There is no evidence confirming exposure to hazardous toxins or chemicals, and a competent and credible medical opinion that links exposure to hazardous toxins to the development of diabetes mellitus, a liver disability or heart disability. These articles are not specific to this Veteran. The Board has considered the articles, but they are not binding and do not control the outcome of this appeal; rather, the facts of this particular case are determinative. Although this is new evidence, it is not material. The new evidence does not provide any explanation as to etiology or otherwise link the claimed diabetes, heart, or liver disabilities to the Veteran's active duty service. Moreover, the Veteran's theory of entitlement remains unchanged from the time of the 2002 and 2003 final denials. Based on the above evidence, the Board finds that new and material evidence has not been received to reopen the claim of service connection for diabetes, a heart disability, or a liver disability. The statements and treatment records are new, but the evidence does not raise a reasonable possibility of substantiating the claims. There has been no evidence received since the April 2002 or December 2003 denial that raises the reasonable possibility of substantiating the claims. Even if the claims were to be reopened, VA's duty to assist would not be triggered, as there is no indication the Veteran suffers from diabetes mellitus, a heart disability or liver disability, as a result of his time in service. The reopening of the claims is not warranted. 4. Entitlement to service connection for prostate cancer 5. Entitlement to service connection for bilateral lower extremity diabetic neuropathy 6. Entitlement to service connection for left leg below the knee amputation The Veteran contends he suffers from prostate cancer, diabetic peripheral neuropathy, and left leg amputation that is related to herbicide exposure during service. In addition, he contends his peripheral neuropathy and amputation are related to his diabetes. Service connection for diabetes mellitus has not been established, as noted above. Therefore, secondary service connection is not warranted for diabetic neuropathy or left leg below the knee amputation. STRs are silent for documentation of prostate cancer, diabetic peripheral neuropathy, and left leg amputation. On separation he denied experiencing prostate condition or neuropathy or a condition that would lead to a left lower leg amputation. At the time of his discharge in 1964, his physical examination was normal with the exception of some scarring. The first indication post-discharge of diabetes was in 1995, and the first indication of peripheral neuropathy was not until 2000, and of prostate cancer in 2003. In a May 2009 VA treatment record, it was reported the Veteran recognized his left foot was turning blue, went for treatment and a significant deep vein thrombosis was found behind the knee. A fasciotomy was done followed by a below the knee amputation. As is stated above, exposure to herbicides has not been conceded. In July 2015, an updated list from the Department of Defense's inventory of herbicide operations, was obtained. Neither Japan nor Rome, NY, are included as locations where herbicides were used or stored. The Veteran has not provided another theory of entitlement to support these service connection claims. The articles, which are evaluated in detail above, are not specific to the Veteran or his experiences. Furthermore, each case is decided on the basis of the individual facts in light of the applicable law and regulations. Therefore, although the Board has considered these articles, they are not binding and do not control the outcome of this appeal; rather, the facts of this particular case are determinative. There is no probative evidence confirming the Veteran had exposure to hazardous toxins or chemicals, including herbicides such as Agent Orange. Nor is there a competent and credible medical opinion that links any exposure to hazardous toxins to the development of prostate cancer, diabetic peripheral neuropathy, and left leg amputation. The evidence of record does not show symptoms consistent with prostate cancer, diabetic peripheral neuropathy, and left leg amputation during his military service or for several year following his discharge from service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (noting that evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The first mention of the aforementioned conditions was over 30 years post discharge. The preponderance of the evidence is against finding that the Veteran suffers from prostate cancer, diabetic peripheral neuropathy, and left leg amputation that are directly due to his military service. First, there is no in-service event, injury, or disease upon which service connection can be based. Again, the preponderance of the evidence is against finding that the Veteran was exposed to herbicides in service. He has not pointed to another reason why he believes these disabilities are related to service. The Board has considered the Veteran's contentions that his prostate cancer, diabetic peripheral neuropathy, and left leg amputation are related to herbicide exposure during service, and that his peripheral neuropathy and amputation are a result of his diabetes. Herbicide exposure has not been conceded. The Veteran is competent to give evidence about what he experienced, but he is not competent to determine whether he was exposed to herbicides in service. To the extent that he believes his exposures in service included exposure to herbicides, such as Agent Orange, the service department records finding no herbicide use in the areas where the Veteran was stationed are more probative than his assertions decades later. Additionally, the Veteran is not competent to render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. The Veteran, as a lay person, has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between his prostate cancer, diabetic peripheral neuropathy, and left leg amputation as being related to herbicide exposure during service. As he is not in receipt of service connection for diabetes mellitus, peripheral neuropathy, and a left leg amputation cannot be granted on a secondary basis. Moreover, the Veteran has not asserted, nor does the evidence show, that these disabilities had their onset in service. In other words, the Veteran's sole contention is that they are related to in-service herbicide exposure. The Board appreciates the Veteran's sincere belief that he was exposed to herbicide in service, but the preponderance of the evidence is against such a finding. Under the provisions of 38 U.S.C. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence is against the Veteran's claim, and thus that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.