Citation Nr: 1314768 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 05-34 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a left upper extremity disability, to include as secondary to herbicide exposure and/or to service-connected type II diabetes mellitus. 2. Entitlement to service connection for a right upper extremity disability, to include as secondary to herbicide exposure and/or to service-connected type II diabetes mellitus. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1966 to October 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Roanoke, Virginia RO. In June 2006, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In February 2009, the Board issued a decision that denied the Veteran's claim of service connection for a bilateral arm disability. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In March 2010, the Court vacated the Board's decision and remanded the issue to the Board for further action consistent with a February 2010 Joint Motion for Remand (Joint Motion) by the parties. In September 2010, October 2011, April 2012, and September 2012, the Board remanded the current matters for additional development. The Board notes that the RO issued a statement of the case in January 2013 with regard to the following claims: entitlement to an increased rating for type II diabetes mellitus; entitlement to an increased rating and an earlier effective date for right lower extremity peripheral neuropathy; entitlement to an increased rating and an earlier effective date for left lower extremity peripheral neuropathy; and entitlement to an increased rating and an earlier effective date for microalbuminuria. However, the Veteran did not file a substantive appeal with regard to these claims. Consequently, those matters are not before the Board. See 38 C.F.R. §§ 20.200, 20.302 (2012). The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. Additional documents pertinent to this appeal in Virtual VA have been printed and associated with the physical claims file. FINDINGS OF FACT 1. A left upper extremity disability was not manifested in service or in the first postservice year, and the preponderance of the evidence is against a finding that any current left upper extremity disability is related to the Veteran's service, to include as due to his exposure to herbicide agents therein, or was caused or aggravated by his service-connected type II diabetes mellitus. 2. A right upper extremity disability was not manifested in service or in the first postservice year, and the preponderance of the evidence is against a finding that any current right upper extremity disability is related to the Veteran's service, to include as due to his exposure to herbicide agents therein, or was caused or aggravated by his service-connected type II diabetes mellitus. CONCLUSIONS OF LAW 1. Service connection for a left upper extremity disability, to include as secondary to herbicide exposure and/or to service-connected type II diabetes mellitus, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012); 3.310 (as in effect prior to Oct. 10, 2006). 2. Service connection for a right upper extremity disability, to include as secondary to herbicide exposure and/or to service-connected type II diabetes mellitus, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012); 3.310 (as in effect prior to Oct. 10, 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claims prior to their initial adjudication. An April 2004 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. While he was not advised of disability rating and effective date criteria prior to the initial rating decision, a March 2006 letter informed the Veteran of such criteria. Most recently, a December 2012 supplemental statement of the case (SSOC) readjudicated the matters after the Veteran and his representative responded and further development was completed. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). The Veteran has received all critical notice, and has had ample opportunity to respond/supplement the record. He has not alleged that he was prejudiced because he did not received notice of what was needed to substantiate his claims. The Veteran's service treatment records (STRs) and postservice treatment records have been secured. The RO arranged for VA examinations in June 2011, and obtained VA medical opinions in February 2012 and July 2012. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claims. Legal Criteria, Factual Background, and Analysis Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an 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 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period. Arthritis is a listed chronic disease for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). The law provides that, if a veteran was exposed to an herbicide agent during service, certain listed diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing service connection on a secondary basis requires: (1) competent evidence of a current disability (for which secondary service connection is sought); (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a) ; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Effective October 10, 2006, 38 C.F.R. § 3.310 was revised to implement the Allen decision. The revised 38 C.F.R. § 3.310 institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. In essence, it provides that in an aggravation secondary service connection scenario, there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after aggravation occurred. As the Veteran's claims were pending prior to the effective date of the revised 38 C.F.R. § 3.310, the Board will consider the version in effect prior to October 10, 2006, as it is more favorable to the claimant. See Kuzma v. Principi, 341 F. 3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims being decided. The Veteran contends that he currently has left and right upper extremity disabilities (manifested by numbness and tingling in both arms) which are secondary to herbicide exposure and/or to service-connected type II diabetes mellitus. The Veteran's STRs are silent for any complaints, findings, treatment, or diagnosis of any left or right upper extremity disabilities. His Leave and Earning statements document that he served in the Republic of Vietnam on temporary duty assignment (TDY) from October 1968 to November 1968. Postservice treatment records document the following findings pertaining to the Veteran's bilateral upper extremities. A September 1999 private treatment record notes that he had a bruised shoulder after falling off a horse several days prior. An October 1999 private treatment record notes pain on abduction of his right shoulder with diffuse tenderness and weakness of the right shoulder, and a contusion of the right shoulder was assessed; x-rays of his right shoulder taken on that same date in October 1999 revealed arthritic changes involving the acromioclavicular joint. A February 2004 private treatment record notes numbness of the right posterior shoulder, some mild cervical tenderness with numbness over the right lateral upper arm, and slightly decreased handgrip bilaterally; x-rays of his cervical spine taken on that same date in February 2004 revealed mild degenerative joint disease. A February 2006 VA treatment record notes an onset greater than one year ago of pain occurring in his right hand with paresthesia in the middle and ring finger, and paresthesia in the right wrist was assessed. X-rays of the Veteran's cervical spine in October 2007 confirmed narrowing of the right neural foramen at C3-4 and the left neural foramen at C2-3, both secondary to facet disease. A CT scan of the cervical spine in December 2007 confirmed hypertrophic degenerative changes involving the right uncovertebral joint at the C3-C4 level. X-rays of his cervical spine in February 2008 confirmed degenerative changes in the cervical spine consisting of mild cervical spondylosis. On June 2011 VA diabetes mellitus examination, both of the Veteran's upper extremities were evaluated as normal. On June 2011 VA peripheral nerves examination, he denied any numbness, tingling, or sensory loss over either of his upper extremities; and reflex, sensory, and motor testing all yielded normal results for every aspect of both of his upper extremities. A December 2011 VA treatment record notes that in 2006 the Veteran had an episode of carpal tunnel syndrome which had long since resolved, and that at the present time he did not have signs or symptoms of peripheral neuropathy of the upper extremities. In February 2012, a VA physician rendered a medical opinion that it is not as least likely as not that the Veteran's service-connected diabetes mellitus caused or aggravated his complaints of either/both upper extremity numbness, pain, or tingling. The physician also opined that it is not likely as not that the Veteran has had a disorder of either/both upper extremities manifested by numbness, pain, and/or tingling that is related to service. The physician noted that, although the Veteran complained of symptoms related to his right upper extremity, he did not mention numbness and tingling and paresthesias in his diabetic appointments consistent with diabetic peripheral neuropathy. The physician also noted that the Veteran's neurologic examinations of his upper extremities were consistently normal. The physician stated that, without complaints of bilateral numbness, tingling, and paresthesias of the upper extremities with close follow-up of his diabetes, the examiner saw no evidence of a diagnosis of upper extremity peripheral neuropathy related to diabetes. The physician also stated that the Veteran had a normal examination at discharge from the military in his STRs and no complaints or notes relating to upper extremity findings in the claims file within one year of his service discharge. A June 2012 VA treatment record notes the Veteran's complaints of bilateral shoulder pain, although range of motion in his shoulders was normal. In July 2012, a different VA physician rendered a medical opinion that the Veteran's claimed bilateral upper extremity disabilities are less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected type II diabetes mellitus. The physician discussed all of the relevant medical evidence of record (including the February 2004 and February 2006 private treatment records documenting upper extremity numbness, pain, and tingling) and concluded that, on the basis of this history and the documented abnormalities in the Veteran's cervical spine, the Veteran's reported upper extremity symptoms were secondary to a chronic disability of the cervical spine, specifically degenerative arthritis. The physician opined that there is no evidence to link this disability to the Veteran's term of military duty, which occurred approximately 34 years earlier. The physician noted that the neurological examination of the Veteran's upper extremities in June 2011 was normal. The physician concluded that there were sufficient abnormalities demonstrated on the cervical spine radiological studies to explain the reported symptoms in the upper extremities without diabetic involvement being necessarily implicated. Therefore, the physician opined that the upper extremity symptoms were less likely than 50 percent caused or aggravated by the Veteran's military service or his diabetes mellitus. The evidence shows that the Veteran has had pain, numbness, and tingling in both of his upper extremities during the period of the current claims. His STRs are silent for any disability of either upper extremity, and there is no evidence that arthritis in either upper extremity was manifested to a compensable degree in the first year following his discharge from active duty. Consequently, service connection for either a left or right upper extremity disability on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C.A. § 1112), is not warranted. Notably, the Veteran has not alleged (nor has he submitted competent evidence to show) that he has suffered from either a left or right upper extremity disability continuously since service. See 38 C.F.R. § 3.303(b). Instead, the Veteran provides alternate theories of entitlement to the benefits sought. First, he claims his left and right upper extremity disabilities are causally related to his exposure to Agent Orange in service. In the case of a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, service connection for acute and subacute peripheral neuropathy (defined as 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) will be rebuttably presumed if such disorder manifests to a degree of ten percent or more within one year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Although the Veteran served in Vietnam and thus is presumed to have been exposed to herbicides, the evidence of record does not show that the Veteran has at any time had acute or subacute (as defined) peripheral neuropathy in his upper extremities; consequently, the presumptive provisions of 38 U.S.C.A. § 1116 do not apply to his bilateral upper extremity disabilities. The United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to Agent Orange is not precluded from establishing service connection for such disability as due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). However, there is no competent evidence in the record of a possible nexus between the Veteran's bilateral upper extremity disabilities and Agent Orange exposure. See Combee, supra. The Veteran is competent to describe any discernible symptoms affecting his bilateral upper extremities without any specialized knowledge or training. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). However, the Veteran's statement relating his bilateral upper extremity symptoms to herbicide exposure in service is not competent evidence, as he is a layperson, and lacks the training to opine regarding medical causation; whether a disease/condition is related to Agent Orange exposure is a medical question, and is not capable of resolution by lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). The Veteran's alternate theory of entitlement is that his bilateral upper extremity disabilities are due to his service-connected type II diabetes mellitus. However, there is no competent evidence in the record of a possible nexus between the Veteran's bilateral upper extremity disabilities and his type II diabetes mellitus. As stated above, VA physicians in February 2012 and July 2012 reviewed the claims file (including all pertinent medical evidence of record) and provided adequate rationale for their opinions that it is less likely as not (less than 50 percent probability) that the Veteran's service-connected type II diabetes mellitus caused or aggravated his bilateral upper extremity pain, numbness, and tingling. The Veteran's own statements relating his bilateral upper extremity symptoms to his service-connected type II diabetes mellitus are not competent evidence, as he is a layperson, and lacks the training to opine regarding medical causation; this question is eminently medical in nature and is not capable of resolution by lay observation. See Jandreau, supra. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claims. Accordingly, they must be denied. ORDER The appeal seeking service connection for a left upper extremity disability, to include as secondary to herbicide exposure and/or to service-connected type II diabetes mellitus, is denied. The appeal seeking service connection for a right upper extremity disability, to include as secondary to herbicide exposure and/or to service-connected type II diabetes mellitus, is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs