Citation Nr: 0002410 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 96-48 887A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a bone cyst of the neck of the right humerus, claimed as a thyroid condition, as a result of exposure to ionizing radiation. 2. Entitlement to service connection for bladder cancer as a result of exposure to ionizing radiation. 3. Entitlement to service connection for astigmatism. 4. Entitlement to service connection for a disability manifested by vertigo. 5. Entitlement to service connection for hypoglycemia. 6. Entitlement to service connection for diverticulitis. 7. Entitlement to service connection for peripheral neuropathy as a result of exposure to Agent Orange. REPRESENTATION Appellant represented by: Army and Air Force Mutual Aid Association WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The veteran served on active duty from January 1943 to May 1946, from August 1946 to November 1946, from November 1948 to July 1949, and from September 1950 to June 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal of July 1991, and later, rating decisions of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). In recently received correspondence, the veteran raises the issue of entitlement to service connection for a dental disability, for the purpose of obtaining VA outpatient dental treatment. This matter has not been developed for appellate review, is not inextricably intertwined with the issues before the Board, and is referred to the RO for initial consideration. See Kellar v. Brown, 6 Vet. App. 157 (1994). FINDINGS OF FACT 1. A chronic bone cyst of the neck of the right humerus, claimed as a thyroid condition is not currently demonstrated. 2. A chronic bladder cancer is not currently demonstrated. 3. The veteran is claiming service connection for astigmatism. 4. There has been no establishment of an etiologic nexus between any currently demonstrated disability manifested by vertigo and service. 5. Chronic hypoglycemia is not currently demonstrated. 6. There has been no establishment of an etiologic nexus between currently demonstrated diverticulitis and service. 7. There has been no establishment of an etiologic nexus between any currently demonstrated peripheral neuropathy and service, including as a result of exposure to Agent Orange during service. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim regarding service connection for a bone cyst of the neck of the right humerus, claimed as a thyroid condition disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. The veteran has not submitted evidence of a well-grounded claim regarding service connection for bladder cancer. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 3. The veteran has not submitted a claim for service connection for astigmatism upon which relief may be granted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 4. The veteran has not submitted evidence of a well-grounded claim regarding service connection for a disability manifested by vertigo. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 5. The veteran has not submitted evidence of a well-grounded claim regarding service connection for hypoglycemia. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 6. The veteran has not submitted evidence of a well-grounded claim regarding service connection for diverticulitis. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 7. The veteran has not submitted evidence of a well-grounded claim regarding service connection for peripheral neuropathy. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. 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). The threshold question to be answered concerning these issues is whether or not the veteran has presented evidence of well- grounded claims; that is, ones that are plausible, meritorious on their own, or capable of substantiation. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In the absence of evidence of a well-grounded claim, there is no duty to assist the veteran in developing the pertinent facts and the claim must fail. Epps v. Gober, 126 F.3d 1464, 1467 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 2348 (1998). In order for a claim to be well grounded, there must be competent evidence of current disability, evidence of the incurrence or aggravation of a disease or injury during service, and a nexus between the in-service injury or disease and the current disability. That means that for a claim of service connection, there must be evidence of a current disability, disease or injury during service and a link between the two. Furthermore, the evidence needed to establish service connection for any particular disability, must be competent. That is, an injury during service may be verified by medical or lay witness statements; however, the presence of a current disability requires a medical diagnosis; and, where an opinion is used to link the current disorder to a cause or symptoms during service, a competent opinion of a medical professional is required. Caluza v. Brown, 7 Vet. App. 498 (1995). A well grounded claim may also be established where a chronic disease is shown in service or during an applicable presumptive period or where continuity of symptomatology is demonstrated during service. Savage v. Gober, 10 Vet. App. 489 (1997). I. Claims Based Primarily on Ionizing Radiation Exposure The veteran is claiming service connection for a bone cyst as a result of thyroid disease and bladder cancer as a residual of exposure to ionizing radiation that he was exposed to while on active duty. Service connection for diseases which are claimed to be attributable to radiation exposure during service can be accomplished in three different ways. Ramey v. Brown, 9 Vet. App. 40 (1996). First, there are certain types of cancer which will be presumptively service connected for veterans who engaged in "radiation risk activity" under the provisions of 38 U.S.C.A. § 1112(c) (West 1991). Second, 38 C.F.R. § 3.311(b) provides a list of "radiogenic diseases" which will be service connected provided that certain conditions specified in that regulation are met. Third, direct service connection can be established. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). According to 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), the diseases which can be service-connected in a radiation- exposed veteran if they become manifest to a compensable degree at any time after discharge are: leukemia (other than chronic lymphocytic leukemia), thyroid cancer, breast cancer, cancer of the pharynx, esophageal cancer, stomach cancer, small intestine cancer, pancreatic cancer, multiple myeloma, lymphomas (except Hodgkin's disease), bile duct cancer, gall bladder cancer, urinary tract cancer (which does not include prostate cancer, according to the regulations), cancer of the salivary glands, and primary liver cancer (except if cirrhosis or hepatitis B is indicated). Under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d)(3)(i), a radiation-exposed veteran is one who, while serving on active duty, active duty for training, or inactive duty training, was exposed to a radiation risk activity. Radiation risk activity is defined as (1) on-site participation involving atmospheric detonation of a nuclear device, including assignment to official military duties at Naval shipyards involving the decontamination of ships that participated in Operation Crossroads; (2) occupation of Hiroshima or Nagasaki between August 6, 1945 and July 1, 1946; and (3) internment as a POW of the Japanese who was subject to the same degree of exposure as a member of the Hiroshima or Nagasaki occupation forces. 38 U.S.C.A. § 1112(c)(3) (West 1991 & Supp. 1999); 38 C.F.R. § 3.309(d)(3)(ii) (1999). The Board notes that the regulations define "occupation of Hiroshima or Nagasaki, Japan, by United States forces" as "official military duties within 10 miles of the city limits of either Hiroshima or Nagasaki, Japan, which were required to perform or support military occupation functions such as occupation of territory ...." 38 C.F.R. § 3.309(d)(3)(vi) (1999). According to 38 C.F.R. § 3.311, in all claims in which it is established that a radiogenic disease became manifest after service, but not to a compensable degree within the presumptive periods prescribed in §§ 3.307 and 3.309, and it is contended that that disease was the result of exposure to ionizing radiation, an assessment will be made as to the size and nature of the radiation dose or doses. For purposes of 38 C.F.R. § 3.311 the term "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: all forms of leukemia except chronic lymphatic (lymphocytic) leukemia; thyroid cancer; breast cancer; lung cancer; bone cancer; liver cancer; skin cancer; esophageal cancer; stomach cancer; colon cancer; pancreatic cancer; kidney cancer; urinary bladder cancer; salivary gland cancer; multiple myeloma; posterior subcapsular cataracts; non-malignant thyroid nodular disease; ovarian cancer; parathyroid adenoma; tumors of the brain and central nervous system; cancer of the rectum; lymphomas other than Hodgkin's disease; prostate cancer; and any other cancer. 38 C.F.R. § 3.311(b)(2) (1999). The record shows that the veteran was exposed to ionizing radiation during service. As noted, he is claiming service connection for a bone cyst as a result of thyroid disease and bladder cancer. Thyroid and bladder cancer are conditions for which presumptive service connection may be established. However, it is noted that the veteran is not claiming service connection for cancer of the thyroid, but for a disorder that he believes is the result of a thyroid disorder. Moreover, where there is no demonstration of current disability, a well-grounded claim has not been submitted. Rabideau v. Derwinski, 2 Vet. App. 141 (1992). As will be explained, neither of these claimed disabilities have been demonstrated in the record. An examination was conducted by VA in June 1991. At that time, evaluation of the veteran's thyroid on physical examination and laboratory studies showed no thyroid disease and no parathyroid disease. It was reported that an X-ray study performed in October 1989, showed a small cyst in the right humerus that was felt to be benign. No relationship was drawn between this cyst and the veteran's past exposure to ionizing radiation. On examination by VA in August 1993, it was noted that the veteran had claimed a bone cyst of the right humerus, but that all X-ray studies of the shoulder and humerus have been reviewed by the examiner and by a radiologist and no bone cysts were seen in the humerus. As the disability claimed by the veteran is not demonstrated by the evidence of record, a plausible claim has not been presented and it must be denied. Regarding the veteran's claim for service connection for cancer of the bladder, it is noted that he has undergone several cystoscopic evaluations beginning in February 1987. In June 1988, it was noted that he had had a questionable history of bladder biopsies done elsewhere. There were small areas of petechial "glomerulations" throughout the bladder which had more of an inflammatory appearance. There was no evidence of overt bladder tumor or bladder stones. The cystoscopy performed in February 1995 found no bladder tumors. Biopsies taken showed no evidence of cancer. A cystoscopy performed in March 1996 showed mild trabcubulations, with no evidence of cancer. Under regulations applicable to veteran's who, like the appellant, have been exposed to ionizing radiation, bladder cancer is a presumptive disease. Had he exhibited this disorder, service connection would probably have been established long ago. But there is no evidence in the record that the veteran has, or has ever had, cancer of the bladder. Under these circumstances, a plausible claim has not been presented and the claim must be denied. II. Astigmatism The veteran is claiming service connection for astigmatism. The question to be answered concerning this issue is whether or not the appellant has presented a legal claim for a VA benefit. Sabonis v. Brown, 6 Vet. App. 426 (1994). If he has not done so, his appeal must be denied. As explained below, the Board finds that he has not submitted such a claim. In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. 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). Congenital or developmental defects, refractive error of the eyes, and personality disorders, as such, are not diseases within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. § 3.303(c). Such conditions are part of a life-long defect, and are normally static conditions which are incapable of improvement or deterioration. See VAOPGCPREC 67-90 (1990) (O.G.C. Prec. 67- 90) at 1. VA outpatient treatment records, dated in October 1996 showed presbyopia. The record does not reveal that the veteran's defective vision is anything other than claimed astigmatism and/or presbyopia, which are refractory errors of the eye and, as such, are not disorders for which service connection may be granted under governing criteria. Therefore, service connection may not be legally established for these disorders and must be denied. III. Disability Manifested by Vertigo The veteran is claiming service connection for a disability manifested by vertigo. He states that he experiences vertigo every two to three months. He speculated that it could be due to some vascular insufficiency or related to sinus bradycardia. Review of the evidence shows that he had complaints of dizziness during a period of hospitalization in March 1987 for a disability unrelated to this appeal. At that time, it was reported that the veteran had a history of anxiety reaction and of vertigo. No signs of vertigo were noted in the clinical records of the hospitalization, and no treatment was rendered for vertigo. During a period of hospitalization in June 1992, he gave a history of dizziness, blurred vision, and weakness that comes in spells and he stated that he had been having these symptoms since 1965. It was believed that this could be due to reactive hypoglycemia. There was no diagnosis of vertigo. The pertinent diagnosis was dizziness. Review of the recent medical evidence of record, which includes VA general medical examinations performed in June 1991 and August 1993 as well as reports of VA outpatient treatment dated through October 1996, shows no diagnoses of vertigo or a disability manifested by vertigo. It must be emphasized that to be deemed well grounded, a claim must be supported by evidence, not just allegations. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The fact that the veteran's past medical history may have included vertigo is not sufficient to render this claim plausible because a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406 (1995). As the claimed disability has not been demonstrated in the record, service connection is not warranted. IV. Hypoglycemia The veteran is claiming service connection for hypoglycemia, which he states originated with VA treatment he received in the mid-1980's. He states that hypoglycemia is related to use of the drug Bactrim in treating prostatitis. Review of the record shows that the veteran was treated for prostatitis in September 1986 at which time he had complaints of nervousness, sweating, and felling weak, particularly after having foods such as cereal with sugar. The symptoms were always relieved with honey. The impression was reactive hypoglycemia. Additional medical records, which include, as noted, records from a period of hospitalization in June 1992, continued to show a history of hypoglycemia. However, more recently, the veteran has been given several evaluations for this disorder, which have failed to demonstrate the condition. The veteran was hospitalized at a VA facility in October 1994 for a chief complaint of questionable hypoglycemic episodes. Physical examination and laboratory testing ruled out hypoglycemia. The diagnosis was hypoglycemia, ruled out. VA outpatient treatment records showed that he was again evaluated for hypoglycemia in June 1996. He was given extensive testing for complaints of tingling in the fingers, tiredness, weakness and confusion. In July 1996 it was assessed that the data to date did not suggest hypoglycemia as an etiology for his symptoms. It is unclear from the voluminous contentions that have been advanced by the veteran whether he is claiming benefits for hypoglycemia solely on the basis of 38 U.S.C.A. § 1151 or as direct service connection as well. It is noted that when any veteran suffers an injury or aggravation of an injury as the result of hospitalization, medical, or surgical treatment, or the pursuit of a course of vocational rehabilitation, and such injury or aggravation results in additional disability to the veteran, disability compensation shall be awarded in the same manner as if such disability or aggravation were service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.358. However, as with any basic claim, evidence of current disability must be submitted. Caluza v. Brown, 7 Vet. App. 498 (1995). As there is no clear demonstration that the veteran currently has hypoglycemia, the claim is not plausible and must be denied. V. Diverticulosis It is initially noted that service connection is currently in effect for hiatal hernia and spastic and deformed duodenal bulb consistent with chronic recurrent peptic disease, currently evaluated as 20 percent disabling. The veteran is now claiming service connection for diverticulosis, another gastrointestinal disease. Review of the service medical records does show that he had gastrointestinal complaints during service, but these were attributable to the duodenal ulcer disease for which service connection has been established. There were no findings of diverticulosis. The veteran was hospitalized at a VA facility in April 1993 so that a colonoscopy to evaluate complaints of abdominal pain could be performed. He reported that he had undergone this procedure during the 1980's and had been told that he had diverticulosis. It was further reported that CT scans of the abdomen and pelvis were normal. The colonoscopy showed multiple diverticula present throughout the colon. The diagnosis was diverticulosis. An examination was conducted by VA in May 1994. The pertinent diagnosis was diverticulitis, the exact cause of which could not be determined. It was noted that there was no evidence on examination that any of the prior treatment that the veteran had undergone had contributed to the development of diverticulitis. A colonoscopy performed by VA in July 1996 again showed diverticulosis. No relationship was drawn between this disorder and service. The veteran claims service connection for diverticulosis as a disability separate and apart from the other gastrointestinal disorders for which service connection has been established. For his claim to be well grounded, the veteran would have to submit competent medical evidence of causality between incidents of service and the disability for which he is claiming service connection. Grivois v. Brown, 6 Vet. App. 136 (1994). No such evidence has been submitted in the present case. As a plausible claim has not been submitted, service connection is not warranted. VI. Peripheral Neuropathy The veteran has claimed service connection for peripheral neuropathy as a result of exposure to the dioxin Agent Orange during service. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent (Agent Orange), unless there is affirmative evidence to establish that he or she was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (1999). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), and soft-tissue sarcomas. The term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e) (1999). Chloracne, or other acneform disease, may be presumed to have been incurred during active military service as a result of exposure to Agent Orange if it is manifest to a degree of 10 percent within the first year after the last date on which the veteran was exposed to Agent Orange during active service. 38 C.F.R. § 3.307(a)(6)(ii) (1999). Aside from these presumptive provisions, service connection might be established by satisfactory proof of direct service connection. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Review of the service medical records finds no indication of peripheral neuropathy. VA examinations performed in February and September 1971 are similarly negative for any neurologic abnormality, as are private treatment records that are dated in the early 1980's. The earliest manifestation of any neurologic disorder is shown on a report of VA outpatient treatment dated in June 1985. This shows that electrodiagnostic testing was compatible with left carpal tunnel syndrome. There was no relationship drawn between this disorder and the veteran's periods of active duty. An examination was conducted by VA in January 1990. At that time, it was noted that the veteran had been scheduled for a carpal tunnel syndrome release later that month. Other neurologic symptoms noted on this examination were related to radiculopathy of the cervical spine and a thoracic vertebral fracture. There were no symptoms of generalized peripheral neuropathy. Electrodiagnostic studies were performed at a private facility in April 1991. The findings were compatible with chronic right C8-T1 radiculopathy. An extensive neurologic evaluation was conducted by John A. Dilullo, M.D., in December 1992. Findings included lumbar radiculopathy in the L4-L5-S1 distribution and cervical/thoracic radiculopathy from C8 to T1. Also noted was questionable carpal tunnel syndrome and possible peripheral neuropathy or entrapment neuropathy. Additional testing was recommended to rule out peripheral neuropathy. An Agent Orange examination was conducted by VA in April 1993. No neurologic disorder was found on this examination. A statement of Shin J. Oh, M.D., dated in July 1993, shows that nerve conduction studies performed in May 1993 revealed a mild peripheral neuropathy. Dr. Oh did not speculate on the etiology of the peripheral neuropathy. An examination was conducted by VA in August 1993. At that time, examination showed some sensory loss of both feet up to the mid-calf on both cold and pinprick. This was more of a stocking type of diminished sensation. The pertinent diagnosis was mild neuropathy of the lower extremities, bilaterally, cause not determined. While acute or subacute peripheral neuropathy is a disease that is presumptive for veteran's who have been exposed to dioxin, the veteran has not manifested this disorder as it is defined by regulation. In other words, transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset has not been demonstrated in the record. Service connection may still be established without the use of regulations applicable to veteran's exposed to Agent Orange, but for his claim to be well grounded, the veteran would have to submit competent medical evidence of a nexus between incidents of service and the disability for which he is claiming service connection. Grivois v. Brown, 6 Vet. App. 136 (1994). He has not done so. The earliest neurologic disorder, carpal tunnel syndrome, was not demonstrated until 15 years after service. Peripheral neuropathy was not demonstrated until approximately 20 years after service and examiners did not relate this condition to any of the veteran's periods of active duty. Under these circumstances, the claim is not considered plausible and must be denied. .............................(CONTINUED ON NEXT PAGE)............................... ORDER The claims for service connection for a bone cyst of the neck of the right humerus, claimed as a thyroid condition, as a result of exposure to ionizing radiation; bladder cancer as a result of exposure to ionizing radiation; astigmatism; a disability manifested by vertigo; hypoglycemia; diverticulitis; and, for peripheral neuropathy as a result of exposure to Agent Orange, are denied. CHRISTOPHER P. KISSEL Acting Member, Board of Veterans' Appeals