Veteranclaims’s Blog

October 3, 2012

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).”
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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

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