Citation Nr: 1322707 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 08-38 284 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for acute and subacute peripheral neuropathy, to include as due to exposure to Agent Orange (also claimed as pain and numbness to feet). 2. Entitlement to service connection for a low back condition. 3. Entitlement to service connection for a bilateral hip condition, with pain radiating down the left leg. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active service from September 1962 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran submitted a Notice of Disagreement (NOD) with this determination in January 2008, and perfected his appeal in November 2008. In the January 2008 NOD, the Veteran requested a Decision Review Officer (DRO) hearing. At that time, the Veteran submitted a VA Form 9 noting his desire to have a BVA hearing at the local VA office before a member of the BVA, prior to the issuance of the SOC. The Veteran was scheduled for DRO hearing on July 16, 2008, and was rescheduled for October 15, 2008. The hearing was again rescheduled to November 19, 2008 due to a scheduling conflict with the Veteran's Power of Attorney, Veterans of Foreign War (VFW). Per a November 2008 telephone conversation, the Veteran requested that his DRO hearing be postponed because he did not feel the VFW was familiar enough with his claims. The Veteran did not subsequently request that another DRO hearing be rescheduled. The SOC was issued in November 2008. The timely November 2008 Substantive Appeal (submitted within 60 days of the issuance of the November 2008 SOC) noted that the Veteran did not wish to have a BVA hearing. 38 U.S.C.A. §§ 20.302, 20.704(d) (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that there are additional VA treatment records related to the Veteran's claims on appeal. These records have been reviewed and considered by the Board. The issues of service connection for peripheral neuropathy and a low back condition are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence does not demonstrate that the Veteran's currently diagnosed bilateral degenerative joint disease (DJD) of the hips, manifested during, or as a result of active military service, or within one year thereafter. CONCLUSION OF LAW The criteria for service connection for bilateral DJD of the hips have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in August 2007 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. The letter also provided notice regarding how disability ratings and effective dates are assigned if service connection is awarded. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining VA medical records and providing the Veteran with a VA examination in November 2012. Additionally, the Veteran has not indicated that he has received additional treatment for his hip disability. The Board thus concludes that there are no additional records outstanding with respect to that claim. Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Service Connection Legal Criteria 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, 1131; 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). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may 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. Certain listed disabilities may be presumed to have been incurred during active military service if manifested to a degree of 10 percent within the first year following 90 days or more active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Background The Veteran contends that his bilateral hip disability is due to his active military service. Specifically, the Veteran's representative contends that his hip disability is due to his military occupation as a Combat Engineer. The Veteran's service entrance and separation examinations are void of any bilateral hip condition. Additionally, there are not complaints or treatment for any hip conditions in the Veteran's service treatment records. In a June 2007 statement, the Veteran first reported that he had pain in both of his hips, the left greater than the right, which radiated down his left leg. The Veteran submitted a November 2008 statement from his wife. She stated that the Veteran functioned well before leaving for Vietnam. She noted that after his return, she noticed the he had problems bending and his back hurt him; the same was true for the hips and he complained about pain going down his legs. VA treatment records are void of any complaints or treatment for a bilateral hip disability. The Veteran did make complaints of pain radiating down his left leg, but they were attributed to his lumbar spine condition. The Veteran was afforded a VA examination in November 2012. The Veteran reported that his hips stated to bother him in the late 1980's, but denied any injury. The Veteran reported that he had been treated by a chiropractor for his hips, and no other treatment. Currently, the hip pain was most painful on the right side in the back, and down the legs. The VA examiner diagnosed the Veteran with mild degenerative joint disease of the bilateral hips. The VA examiner noted that the Veteran had no diagnosis of a bilateral hip condition while in-service. His enlistment and separation examinations were negative for a hip condition. There were no records on the Veteran between separation from the service and 2007. The Veteran stated that the hips were not painful until the 1980's. The VA examiner concluded that with the lack of documented chronicity between service and the present time, it was less likely than not that the current hip condition incurred in or was caused by service. Analysis The Board finds that the weight of the competent evidence shows that the Veteran is not entitled to service connection for DJD of the bilateral hips. Although he has a current diagnosis of DJD of the hips, the existing medical evidence does not show that this condition was manifested in service, within a year from being discharged from service, or is otherwise related to service. As discussed above, the evidence does not show that the Veteran manifested arthritis of the hips during active military service. In addition, there is no medical evidence of record showing that arthritis of the hips was manifested during her first post-service year. Therefore, a presumption service connection for arthritis as a chronic disease is not warranted. See 38 C.F.R. §§ 3.307, 3.309. Furthermore, as reflected in the November 2012 VA examination report, the Veteran reported a post-service onset of his hip symptomatology in the 1980's. He never once testified that he had a continued hip symptomatology since his discharge from service. While there is medical evidence showing a diagnosis of bilateral hip DJD, there is no medical evidence of record etiologically linking bilateral hip DJD to the Veteran's military service. As previously mentioned, the November 2012 VA examiner concluded that it was less likely than not that the Veteran's bilateral hip DJD incurred in or was caused by the claimed in-service injury, event, or illness. The November 2012 VA examiner concluded that it was less likely than not that the current hip condition incurred in or was caused by service based on the lack of documented chronicity between service and the present time. Thus, the Veteran's hip condition was not noted during service and a continuity of symptomatology was not demonstrated by the lay or medical evidence of record thereafter. As such, entitlement to service connection on a direct basis must be denied. The VA examiner's opinion noted above is based on review of the claims folder, including the Veteran's service treatment records, and her opinion thoroughly discusses the Veteran's pertinent in-service and post-service medical records. The VA examiner offered a detailed explanation for the opinion rendered that incorporates both the facts of the Veteran's case and the pertinent medical principles. During the examinations, the Veteran provided the examiner with the onset and a description of his symptoms. Given the VA examiner's access to the claims folder and the thoroughness and detail of the opinion, the Board finds this opinion to be highly probative in determining whether service connection for bilateral hip DJD is warranted. The Board has carefully considered the Veteran's assertions that his bilateral hip DJD is related to his active duty. However, as a layperson with no demonstrated medical training or experience, he is not competent to give a medical opinion on the diagnosis, causation, or aggravation in the context of the particular claim at issue. See Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the Veteran is competent to give evidence about the symptoms that he has experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency must be distinguished, however, from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Thus, the Board rejects the Veteran's unsubstantiated lay contentions because medical evidence in the file shows his bilateral hip DJD did not have its onset in-service, but first manifested more than 40 years after service. The lapse of so many years after his separation from service and the first documented suggestion of this claimed disorder is also probative evidence to be considered in determining whether this claimed disability may be traced back to his military service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). While the Veteran states that pain first manifested in the 1980's, the Court has said that symptoms alone, like pain, without a diagnosed related medical condition does not constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for bilateral hip DJD must be denied. ORDER Service connection for degenerative joint disease of the bilateral hips is denied. REMAND After a thorough review of the Veteran's VA claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claims of service connection for a low back condition and peripheral neuropathy. A. Low Back Condition The Veteran contends that his back condition is due to his active duty. In a May 2007 statement, the Veteran reported that he had persistent low back problems for many years. While in service, he worked with a bridge company putting together pontoon bridges, along with other heavy construction. He also reported that he made several amphibious landings. At that time, he was assigned to a shore party battalion, in which he helped off load heavy equipment to the beach. Additionally, after leaving service, he reported that his back problems worsened, and he went to see a specialist in January 1984. He noted that a CAT scan was performed and he was told he was a candidate for disc surgery. A July 2008 letter from the Veteran's private Chiropractor noted that the Veteran was a patient of his in Glendale, Arizona, in the mid to late 1980's. He remembered treating the Veteran for low back pain. He noted that he did not have access to those records. The Veteran submitted a record of chiropractic treatment dating back to 1984, based on his memory of the treatment. The Veteran was afforded a VA examination in November 2012. The Veteran reported that his back pain began in the 1960's after lifting heavy objects during service. He saw a chiropractor over the years for this condition. His current back pain was located in the lower back along the spine, and radiated into both of his legs. The VA examiner diagnosed the Veteran with degenerative disc disease (DDD) of the lumbar spine, with mild left sided radiculopathy. The examiner noted that the Veteran was not diagnosed with a back condition while in-service. His enlistment and separation examinations were negative for a back condition. There were no records on the Veteran between separation from service and 2007, at which point there was mention of a chronic back condition. A statement from a doctor that was treating the Veteran indicates he was treated between the mid to late 1980's. The examiner concluded that with the lack of documented chronicity between service and the current condition, it was less likely than not that the Veteran's current back condition was related to service. However, the examiner did not acknowledge or discuss the Veteran's lay statements discussing his continuity of symptomatology and treatment for his back condition since discharge from service when rendering an opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service); see also 38 C.F.R. § 4.2 (2012) (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced). Additionally, as noted in Buchanan v. Nicholson, the Board cannot determine that the Veteran's lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. 451 F.3d 1331 (2006). Additionally, the examiner based her opinion on the fact that there was a lack of documented chronicity between service and the current condition, however, she failed to consider the Veteran's private physician's statement that noted treatment for a back condition in the 1980's when rendering an opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As such, the examination report is not adequate for rating purposes, and this matter must be remanded for a new VA examination. B. Peripheral Neuropathy The Veteran contends that he has peripheral neuropathy as a result of Agent Orange exposure during his active service in Vietnam. The Veteran served on active duty from September 1962 to September 1966, including a tour in Vietnam from June 1966 to September 1966. It therefore is presumed that he was exposed to Agent Orange or other herbicide agent during that service in Vietnam. The current law shows that acute and subacute peripheral neuropathy is on the list of diseases presumptively associated with said exposure, even if there is no record of the disease in service. 38 U.S.C.A. § 1116 ; 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). 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) , Note 2; Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Significantly, the availability of presumptive service connection for a disability based on exposure to herbicides, however, does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which instead concerned exposure to radiation, are equally applicable in cases involving exposure to Agent Orange). VA treatment records show that in November 2007, the Veteran reported the onset of peripheral neuropathy in the past year, with progression and chronic low back pain for 25 years. A January 2008 record noted a diagnosis of mild sensorimotor polyneuropathy of unknown etiology. VA EMG and nerve conduction studies showed evidence of mild to moderate peripheral neuropathy both sensory, as well as motor. A September 2008 VA record noted that there was no obvious cause for polyneuropathy, but Agent Orange was in the running. Lastly, an April 2010 record noted a diagnosis of neuropathy, with back problems as the most likely source. Therefore, a new VA examination is necessary to determine whether the Veteran's peripheral neuropathy was caused by, or is otherwise related to, his time in service, to include exposure to Agent Orange, or his back condition. In the examination report, the examiner must acknowledge and discuss the Veteran's report of an in-service incident and continuity of symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Accordingly, the case is REMANDED for the following actions: 1) The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2) Schedule the Veteran for a VA examination to determine whether any current low back disability is related to his service. The claims file and a copy of this remand must be reviewed by the examiner, and the examination report must reflect review of these items. All indicated testing should be conducted. The examiner should diagnose the Veteran's current low back disability(s). The VA examiner should then render an opinion as to whether it is at least as likely as not that any current low back disability had its onset in service or is related to any in-service disease, event, or injury, to include his duties as a Combat Engineer. The examiner should consider the Veteran's service treatment records, VA treatment records, private treatment records, lay statements, and any other relevant information. Additionally, the examiner should discuss the Veteran's lay statements regarding the onset and duration of low back symptoms when discussing the offered opinion. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3) After obtaining any available treatment records, the AMC should schedule the Veteran for an appropriate examination to determine the nature and etiology of his peripheral neuropathy. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All indicated studies should be performed, and all findings should be reported in detail. The examiner should address the following: A. Is it at least as likely as not that the Veteran's peripheral neuropathy had its onset during active service or is related to any in-service disease, event, or injury, to include exposure to Agent Orange. B. Is it at least as likely as not that the Veteran's peripheral neuropathy is caused by the his back disability. C. Is it at least as likely as not that the Veteran's peripheral neuropathy is aggravated (permanently worsened) by his back disability. Please specifically address whether there was any increase in severity of the Veteran's peripheral neuropathy that was proximately due to or the result of the Veteran's back disability, and not due to the natural progress of the Veteran's peripheral neuropathy. Additionally, the examiner should consider the Veteran's service treatment records, VA outpatient treatment records, private treatment records, and any other relevant information. Furthermore, the examiner should discuss the Veteran's lay statements regarding the onset and duration of symptoms when discussing the offered opinion. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinions to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5) After completing the above action, the claim should be readjudicated. If a claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, these issues should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs