Citation Nr: 1320145 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 04-27 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a neurological disability in the bilateral hands, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1990. This matter came to the Board of Veterans' Appeals (Board) from an October 2002 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded for further development in March 2008, February 2010, and November 2010. FINDING OF FACT The most probative evidence of record reflects that the Veteran does not have a neurological disability affecting the bilateral hands. CONCLUSION OF LAW A neurological disability of the bilateral hands was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, a VCAA letter was issued to the Veteran in June 2002. The VCAA letter notified the Veteran of what information and evidence is needed to substantiate his claim of service connection, what information and evidence must be submitted by the claimant, and what information and evidence will be obtained by VA. In March 2006, notice was issued to the Veteran with regard to how VA determines disability ratings and effective dates. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal; however, the Veteran has received fully compliant notice and his claim was most recently readjudicated in February 2013. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA, to include substantial compliance with the Board Remands. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence of record contains the Veteran's service treatment records and post-service private and VA treatment records. The Veteran has not identified any other relevant post-service medical evidence pertaining to the issue being addressed in this decision. As will be detailed below, the Veteran has undergone several VA examinations. Based on receipt of the most recent December 2012 VA examination report, there is sufficient information to decide the issue on appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal. Criteria & Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). It is provided that the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.308(a)(6)(ii). These diseases include chloracne or other acneform disease consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, Parkinson' disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (2010); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). Note 2 corresponding to 38 C.F.R. § 3.309(e) states that 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. The Veteran asserts that he has a neurological disability in the bilateral hands. He has reported problems with his hands since 1988 while on active duty and that his condition worsened over the years. According to the Veteran, he was seen in service for his problem but they could not find anything wrong with him. He contends that military doctors failed to diagnose his condition during service. Initially, it is noted that the Veteran's service personnel records reflect that he served in Vietnam during his period of honorable service during the applicable time period, and thus he is presumed to have been exposed to herbicide agents. 38 U.S.C.A. § 1116(f). Service personnel records reflect that he served in Vietnam from January to May 1971. Service treatment records, however, do not reflect any complaints or diagnoses of peripheral neuropathy in the weeks and months following his exposure to herbicides in Vietnam. Reports of Medical Examination dated in April 1973, October 1973 reflects that his "upper extremities" and "neurologic" system were clinically evaluated as normal. The medical evidence of record does not reflect that neuropathy manifested within weeks or months of exposure to herbicides in Vietnam, nor that it resolved within two years of the date of onset. In order for the presumption to apply it must appear to a compensable degree within a year of the exposure. The Secretary of the Department of Veterans Affairs 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 other disabilities, including delayed or persistent peripheral neuropathy. It was specifically indicated that the National Academy of Sciences, after reviewing pertinent studies, did not feel that the evidence warranted altering its prior determination that there was inadequate or insufficient evidence of an association between exposure to herbicide agents and the subsequent development of delayed or persistent neuropathy. See Notice, 75 Fed. Reg. 32540-32553 (2010). Thus, despite the Veteran's presumed exposure to an herbicide agent, presumptive service connection under 38 C.F.R. § 3.307(a)(6) is not for application as he does not have a presumptive disability. For these reasons, the Board finds that the presumptive regulations regarding exposure to Agent Orange are not applicable in this case. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Thus, presumptive service connection due to Agent Orange exposure is not warranted. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155 (1997). Service treatment records show complaints of thumb twitching in December 1988. In July 1989 and October 1989, the Veteran complained of twitching in the thumbs. In January 1990, he complained of progressively worsening bilateral hand twitching of year duration. The etiology was unknown. Bilateral thumb twitch was provisionally diagnosed. He had a normal neurologic examination. A July 1990 Report of Medical Examination conducted for separation purposes reflects that his "upper extremities" and "neurologic" systems were clinically evaluated as normal. A November 1991 VA x-ray examination of the hands reflects a small metallic density imbedded in the soft tissues around the MP joint of the left thumb finger, but otherwise the rest of the examination was unremarkable. The Board notes that service connection has been established for retained metallic density left thumb, rated noncompensably disabling, effective October 1, 1990. When examined in July 2002, the Veteran reported that he complained of tingling and numbness in the thumbs and hands in August 1988. He felt they were moving spontaneously associated with an intermittent sharp pain which was aggravated with overuse. History of retained metallic pins in the left thumb was diagnosed. The examiner related that the diagnosis was based upon history that Veteran had been complaining of tingling and numbness of the left thumb with spontaneous movement of the left thumb. Physical examination, including neurological examination, was unremarkable with normal range of motion. The Veteran complained of twitching and locking of both thumbs in August 2002. The Veteran believed he had neuropathy. Numbness in hands most likely related to overuse versus neuropathy was assessed. An assessment was given of nonspecific right median neuropathy and borderline right radial sensory neuropathy in October 2002. The Veteran's symptoms in the thumb came close to being reproduced when stimulating the right median nerve at that wrist. Nonspecific right median neuropathy and borderline right radial sensory neuropathy was assessed in January 2003. EMG on the right documented non specific right median neuropathy and borderline right radial sensory neuropathy in February 2003. Examination was not supportive of carpal tunnel syndrome. X-rays findings in September 2005 revealed normal left hand and right hand limited study within normal range. Intermittent spasms of the right thumb muscle, and subjective factors of numbness and muscle spasms of the right thumb were diagnosed. No objective factors were found. Retained fragment of the left thumb resolved was diagnosed. The VA examiner expressed that the examination did not reveal a cause for the intermittent spasms of both hands. It was noted that the Veteran denied a history of any retained fragment of the left thumb but admitted to intermittent spasms of the left thumb. During the Veteran's September 2007 hearing, he testified that he did not have a diagnosis with regards to his hands at that time. During the May 2010 VA examination, it was expressed that the Veteran felt that his hand symptoms may be consistent with neuropathy due to Agent Orange exposure. The VA examiner did not believe that the symptoms that the Veteran was having in his hands reflected any underlying neurologic disease. The examiner stated that the Veteran had no evidence by examination of peripheral neuropathy and certainly the symptoms in the hands were not consistent with neuropathy or any other neurologic condition. The fact that the Veteran, he stated, had significant pain to palpation in the hands would not be a feature seen in carpal tunnel syndrome, ulnar neuropathy or peripheral neuropathy. Additionally, twitching is not generally a symptom of neuropathy such as carpal tunnel syndrome he stated. In January 2011, the examiner who conducted the May 2010 examination related that he reviewed the 2002 EMG findings performed by Dr. A which diagnosed "non specific right medial neuropathy and borderline radial sensory neuropathy." The examiner stated that he was not sure if this was "real," but that he thought it was more likely that the Veteran did not have any neuropathy or carpal tunnel syndrome at that time. The examiner stated that he thought this was "more likely not related to any origin in the service and certainly not related to any toxic exposure." In December 2012, the same examiner conducted another examination of the Veteran and provided another opinion based on review of the claims folder. The examiner noted that since the Veteran's May 2010 VA examination there had been little change in his symptoms, except that his bilateral hand pain had worsened to some extent. It was noted that he still experiences bilateral hand numbness. The VA examiner noted review of the 2002 EMG which showed "non-specific right median neuropathy and borderline radial sensory neuropathy." The VA examiner, then, noted that the 2010 EMG was entirely normal. The VA examiner opined that the subtle, borderline and non-specific findings on the 2002 EMG were over-interpreted and do not reflect a genuine underlying neurologic pathology. It was also significant that the study performed by the more highly qualified EMGer in 2010 revealed normal findings. The VA examiner noted that the examination of the Veteran revealed normal strength, sensation and reflexes in the upper extremities. The VA examiner opined that it is less likely than not that the Veteran has a primary neurologic condition. His symptoms are not typical for a neurologic problem and his normal EMG test provides additional objective data that this is not a neurologic problem. The examiner could not provide an etiological opinion since he does not have current or past evidence of a neurological disorder either by history, examination, or EMG data. The Board accepts the VA examiner's opinion as being the most probative medical evidence on the subject, as such was based on an examination of the Veteran, a review of all historical records, and contains detailed rationale for the medical conclusion. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination report, and the fact that the opinion was based on a review of the applicable record, the Board finds such opinion is probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). For these reasons, the Board finds that the VA examiner's conclusion that the Veteran does not have a neurological disorder of the hands is more probative than the 2002 finding of nonspecific right median neuropathy and borderline right radial sensory neuropathy. As the VA examiner opined and explained, the 2002 findings were over-interpreted and do not reflect a genuine underlying neurologic pathology. In the absence of proof of a neurological disability affecting the hands, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board notes that pain alone, without a diagnosed or identifiable underlying malady, does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361 (Fed. Cir. 2001) (pain alone, without a diagnosis or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). A Veteran's belief that he is entitled to some sort of benefit simply because he had a disease or injury while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. In the absence of any competent evidence of a neurological disability of the hands, the Board must conclude the Veteran does not currently suffer from such a disability. Thus, the Board must deny the Veteran's claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The Board has considered the Veteran's contention that he has a neurological disability affecting the hands. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means 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 the facts or circumstances and conveys matters that can be observed and described by a lay person). In this capacity, the Board finds the Veteran is competent to attest to his symptoms associated with his hands, and finds his assertions to be credible. Likewise, the Veteran's hand/thumb symptomatology is documented in the service treatment records. The Veteran, however, is not competent to diagnose a neurological condition affecting the hands, as he does not have the requisite medical expertise. As detailed hereinabove, the VA examiner explained that the Veteran does not have a neurological condition affecting the hands. The Veteran's contentions are outweighed by the objective clinical findings and conclusions made by a medical professional. Absent a showing of a neurological disability of the hands, service connection for such disability cannot be granted. Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for a neurological disability in the bilateral hands must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Entitlement to service connection for a neurological disability in the bilateral hands is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs