Citation Nr: 1311214	
Decision Date: 04/04/13    Archive Date: 04/19/13

DOCKET NO.  09-00 131A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for hypertension, including as due to herbicide exposure. 

2. Entitlement to service connection for a bilateral shoulder disability. 

3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), including as due to herbicide exposure. 


REPRESENTATION

Veteran represented by:	Clark W. Berry, Esq.


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife

ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel


INTRODUCTION

The Veteran had active service from October 1959 to October 1962 and from September 1967 to November 1978, including in the Republic of Vietnam. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In June 2011, the Board remanded the appeal for further development, and it now returns to the Board for appellate review.

In October 2010, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge, sitting at the RO.  A transcript of the hearing is associated with the claims file.  

At the hearing the representative stated that a claim for ischemic heart disease had been filed, but there is no such claim of record.  Additionally, the Veteran testified to falling off of a tank onto his shoulders and his neck and that he still has degenerative arthritis in his neck.  The representative then indicated that a claim for service connection for that disorder would also be filed.  Therefore, these claims are referred to the RO for appropriate action.  

Also timely appealed and addressed in the June 2011 remand was the issue of entitlement to service connection for a right knee disability.  This claim was granted in a September 2012 rating decision.  Therefore, as that decision was a full grant of the benefit sought on appeal, this issue is no longer before the Board. 

The issue of entitlement to service connection for chronic obstructive pulmonary disease (COPD) is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1. The Veteran is presumed to have been exposed to herbicides coincident with service in the Republic of Vietnam.

2. Hypertension did not have its onset during service or within one year of the Veteran's discharge from service and is not the result of disease or injury incurred during the Veteran's military service.

2.  A bilateral shoulder disorder did not have its onset during service or within one year of the Veteran's discharge from service and is not the result of disease or injury incurred during the Veteran's military service.

 
CONCLUSIONS OF LAW

1. The criteria for service connection for hypertension have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

2. A bilateral shoulder disorder was not incurred in the Veteran's active duty military service.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).






REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Stegall Considerations

This case was remanded by the Board in June 2011.  The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders."  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The purpose of the remand was to develop the record; namely to obtain any outstanding VA and private treatment records and records from the Social Security Administration (SSA) and to schedule VA examinations for each claimed disability.  A review of the post- remand record shows that the Veteran did not identify any outstanding private treatment records, but that VA treatment records dated through July 2012 were added to the claims file, as were records from SSA.  VA examinations were completed in August 2011.  Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the June 2011 remand, and that the Board may now proceed with adjudication of the claims.

II. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claims and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claims.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

The VCAA requires that VA inform a claimant about the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353 -23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. 

VCAA notice must be provided before the initial unfavorable AOJ decision on the claims for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In this case, the Veteran was provided with a VCAA notification letter in September 2007, prior to the initial unfavorable AOJ decision issued in March 2008.  The pre-adjudicatory VCAA notice informed the Veteran of the evidence necessary to establish service connection, of how VA would assist him in developing his claims, and his and VA's obligations in providing such evidence for consideration.  This letter also included information regarding the substantiation of disability ratings and effective dates.  Therefore, the Board finds that the Veteran received all necessary VCAA notice prior to the initial adjudication of his claims. 

Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied.  See Mayfield v. Nicholson, 444 F.3d 1328, 1333   (Fed. Cir. 2006).  Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision.

In Bryant v. Shinseki, 23 Vet. App. 48 (2010), the Court held that 38 C.F.R. 
§ 3.103(c)(2) (2012) requires that the Veterans Law Judge or Decision Review Officer who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the Board hearing, the Veteran gave extensive testimony on his in-service and post-service symptoms and complaints.  The VLJ and the accredited representative from the Disabled American Veterans asked questions to ascertain what happened to the Veteran in service and why he believes his claimed disabilities are related to service.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative.  Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearings.  Therefore, the Board finds that, 

consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 
§ 3.103(c)(2).

VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of his claims and providing him with a VA examination.  The Veteran's service treatment records, VA and private medical records, SSA disability records, and the reports of August 2011 VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of the claims.  The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claims. 

With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  In this case, the examiner reviewed the claims file, documented the Veteran's subjective complaints and medical history, and clinically evaluated the Veteran.  Thereafter, he provided opinions with supporting rationales that were based on all relevant facts of record and medical literature.  Nothing suggests that either opinion was arbitrary or inconsistent with the facts of the case.  Therefore, the Board finds the VA examination reports in this case are adequate for rating purposes.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met.  38 C.F.R. § 3.159 (c)(4). 

In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claims without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran).  Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claims.
III. Analysis

Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a).  Connecting the disability to service may be accomplished through statutory presumption or through affirmative evidence that shows inception or aggravation during service, or that otherwise indicates a direct relationship between service and the current disability.  38 C.F.R. §§ 3.303(a), (d).    

The statutory presumptions and VA regulations implementing them are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted.  See 38 C.F.R. § 3.303(d).  Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis and hypertension, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  

The following diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina, all B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, cute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma.  38 C.F.R. § 3.309(e) (revised 75 Fed. Reg. 53202-53216, August 31, 2010).  For purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease.  Id.  VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted.  See 68 Fed. Reg. 27,630 (May 20, 2003).  The Veteran's service records confirm that he served in the Republic of Vietnam from April 1968 to April 1969.

Presumptions are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  38 C.F.R. § 3.303(d).  Direct service connection may be granted for disease or disability diagnosed in service; or, if diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  Id.    

In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Further, with chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  Id.  When the disease identity is established (arthritis, hypertension, leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Id.  For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran contends that he has hypertension and a bilateral shoulder disorder as a result of military service.  He particularly argues that the hypertension is due to exposure to herbicides in service and that he injured his shoulders when he fell off of a tank one winter.  Therefore, he contends that service connection is warranted for these disabilities.

Initially, the Board observes that service treatment records are silent for complaint, treatment, or diagnosis related to hypertension and the shoulders.  Post-service treatment records dated from within the appeal period reflect a diagnosis of hypertension.  Private treatment records reveal treatment for bursitis in the left shoulder in December 2005.  Further, at the August 2011 VA examination, the examiner assessed normal shoulder joints; however, the X-ray at that time showed mild degenerative changes.  Therefore, the Board concludes that the Veteran has a current diagnosis with respect to each of his claims.

The claims then turn on whether there is a relationship between the Veteran's military service and his currently diagnosed disorders.  The Board notes that the record does not contain a diagnosis of arthritis in the shoulders.  However, degenerative changes were found.  Even so, these changes were not found within one year of service discharge.  Similarly, the evidence also does not establish a diagnosis of hypertension within one year after the Veteran separated from service.  Therefore, service connection on a presumptive basis is not warranted.  

The only competent evidence with regard to direct service connection is the opinions of the August 2011 VA examiner.  With respect to the hypertension, the examiner noted that the service treatment records did not show hypertension during service and that the first date associated with hypertension was 1986.  He also documented that the Veteran has no other sign of heart disease, shown by a recent normal Myocardial Scan.  The examiner stated that hypertension is not known to be related to Agent Orange exposure.  For these reasons, he opined that the hypertension was not related to active service or any incident in service, including the Veteran's in-service herbicide exposure.

As for the bilateral shoulders, the examiner observed that there was no reference to shoulder injuries in the service treatment records, and that the Veteran admits he did not go to sick call.  The examiner noted the Veteran's account of the fall from the tank that purportedly injured his shoulders.  He stated that medical literature holds that if there had been an injury to the joint, there would be X-ray changes by this time, but that there were only minimal changes present in July 2010.  The examiner indicated that the Veteran's frequent use of a rowing machine for exercise most likely perpetuates his subjective symptoms.  Therefore, the examiner concluded that the current bilateral shoulder complaints are related to soft tissue/deltoid muscle strain and not to active service or any incident in service.    

The Board acknowledges the Veteran's statements and lay statements of his spouse in support of his claims.  At his October 2010 hearing, the Veteran testified that he had had the same symptoms in service that led to a diagnosis of hypertension in 1986.  He also stated that he injured his shoulders when he fell from a tank onto his shoulders and neck.  The Board observes that the Veteran is competent to describe such symptoms and incidents.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  However, he is not competent to ascribe a diagnosis to the disability causing the symptoms.  Hypertension is diagnosed by taking blood pressure readings, and the Veteran's blood pressure readings in service did not reflect hypertension.  With respect to the shoulders, the Veteran testified to having a severe case of "calcimate" arthritis, rheumatoid arthritis, osteoarthritis, and degenerative arthritis in his shoulders.  X-rays are required to properly assess arthritis, and in this case, X-rays showed minimal degenerative changes only in his shoulders, so minimal that the VA examiner diagnosed normal shoulders.  Accordingly, the only competent evidence of record with respect to the etiology of his hypertension and bilateral shoulder disorders are those of the August 2011 VA examiner. 

In light of the above, the Board finds that, the preponderance of the evidence is against the Veteran's claims of entitlement to service-connection for hypertension and a bilateral shoulder disorder.  38 U.S.C.A. § 5107(b) (West 2002); see also, e.g., Gilbert, 1 Vet. App. at 53.  Therefore, the claims must be denied. 


ORDER

Entitlement to service connection for hypertension is denied.

Entitlement to service connection for a bilateral shoulder disorder is denied. 


REMAND

The Board's review of the claims file indicates that a remand is necessary for the service connection claim for COPD.  The August 2011 VA examiner diagnosed a restrictive airway disorder with no evidence of obstructive airway disorder.  However, the record contains treatment notes showing diagnoses of asthma and COPD, which are both obstructive airway disorders.  Moreover, the examiner then offered an opinion that COPD is not known to be related to Agent Orange exposure and that his occupational exposure to solvents and other chemicals are the most likely causes of restrictive airway disease.  As a result, the Board is unclear as to the nature of the Veteran's current respiratory disorder.  Also the examiner did not address both COPD and restrictive airway disease in relation to each etiological theory he discussed.  Therefore, the Board remands the claim so that another VA examination may be scheduled to assess the nature and etiology of the Veteran's respiratory disorder.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for another VA examination to assess the nature and etiology of his respiratory disorder(s).  The claims file should be made available for review, and the examination report should reflect that such review occurred.  All pertinent symptomatology and findings must be reported in detail.  All tests or studies necessary to make these determinations must be conducted.  Upon a review of the record and examination of the Veteran, the examiner should respond to the following: 

a. Identify all diagnoses appropriate to the Veteran's respiratory symptoms both at the examination and at any time during the appeal period, i.e., since the Veteran filed his claim in August 2007.  

b. Is it at least as likely as not (50 percent probability or more) that any diagnosed respiratory disorder was a result of active service or any incident of service to include the Veteran's in-service herbicide exposure, as opposed to its being more likely the result of some other cause or factors?   

The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 
A complete rationale for any opinion advanced must be provided.  

2. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim.  The consequences for failure to report for any VA examination without good cause may include denial of his claim.  See 38 C.F.R. §§ 3.158, 3.655 (2012).

3. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal.  If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his attorney, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs