Single Judge Application, Kahana v. Shinseki, 24 Vet.App.428, 434-35 (2011)Board's Inferences from Medical Evidence Can't Exceed Layperson's

Excerpt from decision below: "Accordingly, the Court will vacate the Board's determination that the appellant was not exposed to Agent Orange and, therefore, not entitled to service connection for diabetes or hypertension secondary to diabetes. On remand, the Board must re-weigh the evidence of record in light of the discussion above, including whether an expert is necessary to opine on the likelihood of the appellant developing his diagnosed conditions independent of Agent Orange exposure. See Kahana v. Shinseki, 24 Vet.App.428, 434-35 (2011) (holding that the Board cannot make inferences from medical evidence that are beyond the competence of a layperson); cf. Stefl, 21 Vet.App. at 124 (noting that "whether the claimed condition has manifested itself in an unusual manner" is an issue that maybe addressed bya medical opinion in an appropriate case)." ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-1129 ROBERT L. TRUSTY, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before LANCE, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. LANCE,Judge: Theappellant,RobertL.Trusty,throughcounsel,appeals aJanuary4, 2011, Board of Veterans' Appeals (Board) decision that denied his claims for entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, and entitlement to service connection for peripheral neuropathy and hypertension, to include as secondary to diabetes. Record (R.) at 3-18. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will vacate the Board's January4, 2011, decision as to the appellant's claims for diabetes and hypertension and remandthose issues for further development. The decision will otherwise be affirmed. I. FACTS The appellant served in the U.S. Army from March 20, 1968, to November 13, 1970, including service in South Korea from April 9, 1969, to May 8, 1970. R. at 536, 620. In June 2005, 35 years after service, he filed a claim for entitlement to service connection for diabetes mellitus due to herbicide exposure, as well as claims for peripheral neuropathy and hypertension. R. at 429-38. Also in June 2005, the appellant submitted a statement to VA, detailing his claimed exposure to herbicides, indicating that he had been assigned to the "7th Supply and Transport unit, Company A, Camp Casey, Korea" as a supply clerk. R. at 457. He stated that he was involved with handling, moving, bagging, storing, and managing, direct exchange of militaryclothing saturated at times of herbicide liquid spray, diesel fuel, solvents, that damaged clothing, boots, under garments, for direct exchange for new . . . . Our unit also had partial full and empty barrels of solvents, marked with band markings of discolored red or yellowish orange of at the time of unknown substance which was stored in the sa[l]vage yard of our supply office area. At occasions I was order to empty and dump unknown chemical along fence row of salvage yard to kill weeds. Which being exposed to saturated clothing and unknown contents of barrels encountered while working at the supply sa[l]vage yard that caused my diabetes, tingling of my fingers and hands . . . . R. at 457. On June 20, 2005, the appellant was seen by a VA physician assistant (PA) for an Agent Orange exam. R. at 424-28. The PA recorded the appellant's history of exposure to Agent Orange and other herbicides and noted "unsure if was directly sprayed or ate food/water sprayed w AO." R. at 425. The PA observed paresthesia of the second through fifth fingers of both hands "x several yrs" and noted that the appellant had performed repetitive work. R. at 426. The PA assessed the appellant with Agent Orange exposure, as well as cystic acne, diabetes, hypertension, and suspected carpal tunnel syndrome. R. at 427. An August 2005 VA psychiatric consultation note states that the appellant reported having been exposed to Agent Orange while in service. R. at 424. In August 2007, following additionaldevelopment, theappellanttestifiedataBoard hearing. R. at 219-29. In his testimony, the appellant stated that he had been told that some of the clothing he processed in service had been "soaked with weed killer" and that he did not use any protective clothing or gloves when handling those items. R. at 223. He also reiterated his statements that he had been ordered to spray an "unidentified liquid substance" to control weeds, which his sergeant stated was an herbicide. R. at 223-24. The Board issued a decision in January 2008 that, in part, denied entitlement to service connection for diabetes, hypertension, and peripheral neuropathy. The appellant appealed that decision to this Court, which issued a decision in January 2010 vacating the Board's January 2008 decision. R. at 32-34. The Court held that the 2008 decision was "woefully deficient" with respect to the Board's finding that the appellant had not been exposed to Agent Orange while in service, as the Board improperly limited its analysis to whether the appellant 2 had served in a unit entitled to a presumption of exposure to Agent Orange without discussing whether his lay testimony of exposure to Agent Orange or another herbicide was credible. R. at 32- 33. The Court also rejected the Board's assertion that medical evidence was required to demonstrate actual exposure to Agent Orange. R. at 33. On January 4, 2011, the Board issued the decision here on appeal. R. at 3- 18. In it, the Board again denied entitlement to diabetes, peripheral neuropathy, and hypertension. Id. The Board also acknowledged that the appellant had submitted "a December 2008 VA treatment record reflecting a diagnosis of chloracne, 'secondary to Agent Orange exposure,'" and referred the issue of service connection for chloracne to the regional office. R. at 5 ( quoting R. at 179). With respect to the issue of whether the appellant had been exposed to Agent Orange, the Board found that As the Veteran did not serve in . . . one of the specified units in South Korea that have been determined to have been exposed to herbicides, to include Agent Orange, within the relevant time frame, he is not presumed to have been exposed to herbicides . . . during such service; moreover, actual exposure to such herbicides, within the meaningof the governingauthority, has not persuasivelybeenestablished. R. at 5. The Board discussed the appellant's lay testimony, but it found that the Veteran lacks competence to determine that . . . he was actually exposed to Agent Orange, as such a matter is not within his personal knowledge. By contrast, the [Department of Defense (DOD)] is competent to determine whether a member of the Veteran's unit, serving at Camp Casey from April 1969 to May 1970 and performing those duties typical of a supply clerk serving in the Veteran's unit, was potentially exposed to Agent Orange. R. at 12. The Board reasoned that "the fact that the DOD specified those units whose members' duties [] would have potentially exposed them to Agent Orange in Korea . . . and did not include any supply battalions, including the Veteran's unit, tends to weigh against a finding of actual herbicide exposure." R. at 13. The Board found "no other objective, persuasive evidence that the Veteran was exposed to Agent Orange in service, as alleged," and accordingly denied his claim. R. at 13. II. ANALYSIS A. Exposure to Agent Orange The appellant argues that the Board erred when it determined that he had not been exposed to Agent Orange while in service. Appellant's Brief (Br.) at 12-26. In particular, the appellant 3 asserts that the Board improperly discounted his lay testimony solely on the basis that his unit was not part of the list of units presumed to have been exposed to Agent Orange. R. at 13-14. He also contends that the Board failed to consider medical evidence reflecting diagnoses of skin conditions due to Agent Orange as evidence of exposure to Agent Orange. Appellant's Br. at 19-21. In response, the Secretary argues that, as the appellant did not serve in the Korean Demilitarized Zone (DMZ) and "there is no competent evidence of record which establishes herbicide exposure," the Board did not err in its determination that the appellant is not entitled to service connection for his diabetes as secondary to Agent Orange exposure. Secretary's Br. at 3-4. In support of his argument, the Secretary cites to VA's Adjudication Procedures Manual (M21- 1MR), part IV, subpart ii, chapter 2, section C.10.p, which includes a list of units identified by the DOD as having served in or near the DMZ between April 1, 1968, and August 31, 1971, that are presumed to have been exposed to Agent Orange. Secretary's Br. at 6-8. The Secretarycontends that the Board did not err, as "the DOD determination that [the appellant's] unit was not presumptively exposed to Agent Orange constitutes positive evidence that his unit was not exposed to Agent Orange." Secretary's Br. at 9. After reviewing the record, the Court holds that the Board failed to provide an adequate statement of reasons or bases in support of its determination that the appellant was not exposed to Agent Orange when in service. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56–57 (1990). The record contains numerous pieces of evidence supporting the appellant's lay testimony that he handled herbicide-laced clothing and sprayed herbicides at Camp Casey. For example, neither party disputes the fact that Camp Casey was the installation closest to the Korean DMZ during the presumptive period and that several of the units entitled to presumptive exposure belonged to the same command structure, the 7th Infantry Division, as the appellant's unit.1 The Court additionally notes that the 7th Infantry Division as a whole was also based out of Camp Casey, which could corroborate the appellant's lay testimony. See, e.g., Chronological History, 7TH INFANTRY DIVISION, http://www.carson.army.mil/UNITS/F7ID/F7ID_History.htm (last visited August 23, 2012); see also Brannon v. Derwinski, 1 Vet.App. 314, 316 (1991) (courts may take judicial notice of facts of universal notoriety); Smith v. Derwinski, 1 Vet.App. 235, 238 (1991) ("Courts may take judicial notice of facts not subject to reasonable dispute." (citing FED. R. EVID. 201(b))). 1 4 Further,thereis medicalevidencein therecordlinkingtheappellant's skin condition to Agent Orange exposure. See, e.g., R. at 179 (December 2, 2008, dermatologynote noting that the appellant "has been treated for Agent Orange-related chloracne"), 293 (noting that the appellant suffered from cystic acne "which he has had since serving in Korea" and assessing " CHLORACNE as a secondary effectof AO exposure"). Although the appellant'sclaimforserviceconnection forhis skin condition is not on appeal, the Court notes that chloracne is among the conditions entitled to presumptive service connection for veterans exposed to Agent Orange. See 38 C.F.R. § 3.309(e)(2012). The fact that the appellant has multiple conditions entitled to presumptive service connection on the basis of Agent Orange exposure mayalso support the appellant's claimofexposure. However, the likelihood that an individual would develop both of these conditions without having been exposed to Agent Orange or a similar dioxin-containing chemical is likely an issue beyond the competence of the Board. In contrast, the only evidence supporting the Board's determination is the DOD list of units presumed to have been exposed to Agent Orange. Although the Court agrees with the Secretarythat the DOD is generally competent to determine which units were exposed to Agent Orange, there is nothing that indicates that the list is meant to be exhaustive. See, e.g., M21-1MR, pt. IV, subpt. ii, ch. 3, sec. C.10.o (directing additional development for claims of Agent Orange exposure for veterans who served outside the presumptive times and/or units); see also Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994) (noting that a claimant is not barred from seeking direct service connection merely because of the potential availability of presumptive service connection for the same condition); Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (nexus opinion was inadequate when physician mistakenly assumed veteran's condition could not be service connected because it was not on list of conditions for which presumptive service connection was available). In other words, given that the Secretary's own procedures acknowledge that a veteran could have been exposed to Agent Orange in units other than those entitled to a presumption of exposure, the Board's negative use of that presumptive list was in error. This is particularly troublesome in light of the Court's prior remand, which expressly directed the Board to determine the credibility of the appellant's laytestimonynotwithstanding that his unit was not entitled to presumptiveexposure. See R. at 32-34. 5 Accordingly, the Court will vacate the Board's determination that the appellant was not exposed to Agent Orange and, therefore, not entitled to service connection for diabetes or hypertension secondary to diabetes. On remand, the Board must re-weigh the evidence of record in light of the discussion above, including whether an expert is necessary to opine on the likelihood of the appellant developing his diagnosed conditions independent of Agent Orange exposure. See Previous DocumentKahanaNext Document v. Shinseki, 24 Vet.App.428, 434-35 (2011) (holding thattheBoard cannot make inferences from medical evidence that are beyond the competence of a layperson); cf. Stefl, 21 Vet.App. at 124 (noting that "whether the claimed condition has manifested itself in an unusual manner" is an issue that maybe addressed bya medical opinion in an appropriate case). Should the Board determine that the appellant was exposed to Agent Orange or that service connection for diabetes is otherwise warranted, it must also determine whether he is entitled to service connection for hypertension secondary to his diabetes. The appellant is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). In particular, the appellant may wish to submit "buddystatements" from other service members assigned to his unit or other evidence corroborating his claim of exposure to Agent Orange. The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for " expeditious treatment" of claims remanded by Board or Court). B. Diagnosis of Peripheral Neuropathy The appellant also challenges the Board's finding that he does not currently suffer from peripheral neuropathy. Appellant's Br. at 26-28. Specifically, he argues that the Board erred that he was not entitled to a medical examination, as his report of tingling in his fingers was sufficient to trigger VA's duty to assist. Id. The Court is not persuaded by the appellant's argument. VA must provide a medical opinion or examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the 6 disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medicalevidence on file for the Secretaryto make a decision on the claim. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see 38 U.S.C. § 5103(A)( d)(2); 38 C.F.R. § 3.159(c)(4)(i) (2012). Where, however, the evidence is sufficient for the Board to decide a claim, it is not required to provide a medical examination. McLendon, 20 Vet.App. at 84. As the Board explained in its decision, the record does not contain a diagnosis of peripheral neuropathy. R. at 16. Indeed, the only medical evidence of record addressing the appellant's reports of paresthesia appears to relate those symptoms to carpal tunnel syndrome. See R. at 426-27; see also R. at 350 (noting "no known diabetic complications"). Further, although not directlyaddressed bythe Board, but see R. at 6 ("There is no competent evidence or opinion indicating that the Veteran currently has a diagnosis of peripheral neuropathy."), the appellant presents no evidence that, as a layperson, he is competent to diagnose himself with peripheral neuropathyor to relate that condition to his diabetes. Cf. McLendon, supra. In short, the appellant has failed to meet his burden of demonstrating error in this regard, and the Court will affirm the Board's decision on this matter. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant bears the burden of demonstrating error on appeal), aff'd per curiam, 232 F.3d 908 (2000) ( table). Should the appellant obtain a diagnosis of peripheral neuropathy, he is free to submit a request to reopen his claim on the basis of new and material evidence. III. CONCLUSION After consideration of the parties' briefs and a review of the record, the Board's January 4, 2011, decision is VACATED as to the appellant's claims for entitlement to service connection for diabetes mellitus and hypertension, and those matters are REMANDED for readjudication. The Board decision is otherwise AFFIRMED. DATED: September 13, 2012 7 Copies to: Virginia A. Girard-Brady, Esq. VA General Counsel (027) 8