Citation Nr: 21031223
Decision Date: 05/20/21	Archive Date: 05/20/21

DOCKET NO. 15-13 914
DATE: May 20, 2021

ORDER

Entitlement to service connection for multiple sclerosis, to include as a result of toxic herbicide exposure is denied.

REMANDED

Entitlement to service connection for a thyroid disorder, to include as a result of toxic herbicide exposure is remanded.

FINDING OF FACT

The Veteran did not suffer an in-service incident, illness or injury to which his present multiple sclerosis may be etiologically linked; there is no nexus to service; his multiple sclerosis did not manifest to a compensable degree within a year of separation from active service

CONCLUSION OF LAW

The criteria for entitlement to service connection for multiple sclerosis, to include as a result of toxic herbicide exposure have not been met.   38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the Navy from April 1967 to January 1971. 

This case is before the Board of Veterans' Appeals (Board) on appeal from August 2012 and January 2013 Regional Office (RO) rating decisions.

Service Connection

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304.  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.  38 C.F.R. § 3.303(d).

Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 

Entitlement to service connection for multiple sclerosis, to include as a result of toxic herbicide exposure

The Veteran asserts that his multiple sclerosis was caused by toxic herbicide exposure or is otherwise etiologically related to service.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury, to include as secondary to and/or aggravated by a service-connected disability; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Moreover, VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 ; 38 C.F.R. § 3.307 (a)(6).

Service connection is warranted for the following diseases where a veteran has been exposed to toxic herbicide agents during active military service (subject to the requirements of 38 C.F.R. § 3.307 (a)): AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple  sclerosis, non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), and soft-tissue sarcomas. In fact, service connection is warranted even if these disorders were not shown during active duty. 38 C.F.R. § 3.309 (e).

Here, the Veteran asserts that his multiple sclerosis is related to his exposure to toxic herbicides.

As an initial matter, the Board concedes toxic herbicide exposure, as the Veteran's personnel records reflect that the served in the offshore waters of Vietnam. However, service connection is not warranted on a presumptive basis, as his thyroid disorder is not presumptively related to toxic herbicides. Therefore, service connection is not warranted on this basis.

Next, although service connection is not warranted on a presumptive basis, the Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997).

The Board concludes that, while the Veteran has a current diagnosis of multiple sclerosis, the preponderance of the evidence weighs against finding that the Veteran's disorder began during service or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), (d), 3.304, 3.307, 3.309.

The Veteran did not have any complaints, symptoms or a diagnosis of multiple sclerosis during service. In fact, the Veteran's December 1970 separation examination was normal.  

The Veterans post service treatment records do not demonstrate any symptoms, manifestations, or a diagnosis related to multiple sclerosis until 2012.  The Board notes that the manifestation of these symptoms were approximately 42 years after the Veterans military service.  Therefore, continuity of symptoms has not been shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307 (a)(3).

As part of this claim, the Board recognizes the statements from the Veteran regarding his history of symptoms since service. In this regard, while the Veteran is not competent to make a diagnosis related to his disorder, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature," he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

Nevertheless, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not sufficient to establish continuity of symptomology. As an initial matter, the large gap in treatment for the asserted conditions weighs against the Veteran's claim. Further, the Veteran's treatment records, including his service treatment records and December 1970 separation examination and report of medical history, contradict his assertions that his symptoms have persisted since service.  Specifically, the Veteran's VA treatment records from May 2011 through September 2020 do not reflect a relationship between his multiple sclerosis and his active service.  

Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed multiple sclerosis to active duty, despite his contentions to the contrary.

Specifically, there is no clinical evidence of record indicating a relationship between his current multiple sclerosis and his active duty service, nor has any treating physician opined that such a relationship exists.  Further, the Veteran has not submitted evidence including private opinions and/or medical evidence to establish a nexus between his claimed disability and his active service.  

The Board also acknowledges the statements from the Veteran regarding the etiology of his multiple sclerosis. A lay person is competent to report observable symptomatology, such as pain. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his multiple sclerosis may be the result of service, he is a lay person without appropriate medical training and expertise to provide a medical nexus opinion regarding the etiology of his disorder.

The Board concludes that the preponderance of the evidence is against the claim for service connection for multiple sclerosis, and there is no doubt to be otherwise resolved. Therefore, the claim for service connection must be denied. 38 U.S.C.§ 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

REASONS FOR REMAND

Entitlement to service connection for a thyroid disorder, to include hyperthyroidism, to include as a result of toxic herbicide exposure is remanded.

The Veteran is seeking service connection for his thyroid disorder, which was diagnosed with hypoparathyroidism in September 2003.  

Pursuant to the National Defense Authorization Act for Fiscal Year 2021, hypothyroidism was added as a disease associated with exposure to herbicide agents. See Pub.L. 116-283 ; 38 U.S.C. § 1116 (a)(2). However, it is unclear at this point whether hypoparathyroidism is included as presumptively related to toxic herbicide exposure under the new statute.  Indeed, at this point, no VA regulation has been added to 38 C.F.R. § 3.307 or 3.309 to implement and clarify the reach of this new law.  Unfortunately, the Board cannot make its own medical determination on this issue. Colvin v. Derwinski, 1 Vet. App. 171 (1991) 

This matter is REMANDED for the following action:

1. The RO should undertake any development necessary in order to clarify whether hypoparathyroidism will be considered part of the disorders listed as presumptively related to toxic herbicide exposure following the enactment of the National Defense Authorization Act of 2021.  

2. If it is determined that hypoparathyroidism is not part of the new presumption, schedule the Veteran for a VA examination for his thyroid disorder.  

The examiner is asked to provide an opinion as to whether the Veteran's thyroid disorder at least as likely as not related to service, including exposure to toxic herbicides.  In providing this opinion the examiner should provide a rationale in support of this opinion.  

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Vample, Erica