Citation Nr: 1334571 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-46 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for osteoporosis, claimed as secondary to herbicide exposure. 2. Entitlement to service connection for tremor of the hands, claimed as secondary to herbicide exposure. 3. Entitlement to service connection for hypertension, to include as secondary to ischemic heart disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from July 1958 to October 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In April 2013, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript of that hearing is included in the claims file. At that time, the Veteran submitted additional evidence and argument directly to the Board, along with a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2013). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issue of service connection for hypertension, to include as secondary to ischemic heart disease, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Neither osteoporosis nor tremor of the hands began during service or until many years after. 2. Neither osteoporosis nor tremor of the hands is related to the Veteran's in-service Agent Orange exposure or to service in any other way. CONCLUSIONS OF LAW 1. The criteria for service connection for osteoporosis, claimed as secondary to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1116(f), 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for tremor of the hands, claimed as secondary to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1116(f), 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for certain chronic diseases, such as organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge. 38 C.F.R. §§ 3.307, 3.309(a). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. §§ 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam War (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). 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. at Note 2. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended beyond specific disorders, based upon extensive scientific research. See, e.g., 68 Fed. Reg. 27630-27641 (May 20, 2003); 67 Fed. Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (Jan. 11, 2001); 64 Fed. Reg. 59232 (Nov. 2, 1999). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b) and 1116 and 38 C.F.R. § 3.303. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 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 the claimant. Considering the pertinent evidence in light of the governing legal authority, the Veteran's service connection claims must be denied in this case. Initially, the record does not reflect, and the Veteran does not contend, that either osteoporosis or tremor of the hands began during his period of service from July 1958 to October 1969. Service treatment records do not reflect any complaints or findings related to osteoporosis or hand tremor. The August 1969 report for separation form service reflects a normal clinical evaluation of the upper extremities and neurologic and musculoskeletal systems, and at the time the Veteran denied any history of broken bones and did not report any tremors or bone problems. Furthermore, during his June 2010 DRO hearing, the Veteran explicitly denied having any problems with bones or tremors in service, providing factual evidence against his own claim. Also, the record does not reflect that the Veteran developed a hand tremor or osteoporosis until many years after service. The record reflects that the Veteran was initially diagnosed with osteoporosis in January 2009 after suffering an injury from a fall, and the Veteran has not disputed this. Regarding his claim for hand tremors, the Veteran has given somewhat inconsistent statements regarding the onset of such tremors. In his November 2009 claim, he asserted that his hand tremor had become worse in last few years. During his June 2010 DRO hearing, the Veteran asserted that hand tremors began about 30 years before, as a minor tremor, and had worsened in recent years. An October 2010 VA treatment note reflects that the Veteran reported a tremor for the past 35 to 40 years, starting with his left hand and only with activity, and affecting his right hand about 15 years later. During his April 2013 Board hearing, he testified that tremors probably began around 20 years prior, at which time he began reporting tremors to his doctors. In light of these statements, which, while somewhat inconsistent, generally assert that the Veteran's hand tremor began many years after service, the evidence does not show that the any such tremors manifested within a year of his discharge from service in October 1969. In this regard, the earliest indication in the medical record of hand tremor is a July 2009 VA treatment record reflecting a diagnosis of familial tremors, controlled on Mysoline. Also, during his June 2010 DRO hearing, the Veteran reported working in commercial roofing for 35 years after service. Thus, the presumptive service connection provisions of 38 C.F.R. §§ 3.307 and 3.309 for chronic disabilities are not applicable in this case. On this basis, there is simply no basis to grant the claim. Rather, as reflected in his November 2009 claim, February 2010 notice of disagreement, November 2010 substantive appeal, and July 2011 written statement, as well as in his testimony during his June 2010 DRO hearing and April 2013 Board hearing, the Veteran's single contention in this case is that his current osteoporosis and hand tremor are the result of in-service exposure to Agent Orange. In this regard, the Veteran's service records reflect that he served in the Republic of Vietnam during the Vietnam War, and he is therefore presumed to have been exposed to Agent Orange in service. However, the weight of the evidence is against a finding that either osteoporosis or tremor of the hands is related to the Veteran's in-service Agent Orange exposure. Neither claimed disability is listed under 38 C.F.R. § 3.309(e), and therefore neither is presumed to have been the result of in-service exposure to Agent Orange. While Parkinson's disease is listed under 38 C.F.R. § 3.309(e) and would be presumed to have been the result of in-service herbicide exposure, the record does not reflect, and the Veteran has not contended, that he has Parkinson's disease (a problem which is generally well known to sometime cause a tremor). In this regard, thankfully, on VA examination in September 2011, the Veteran was specifically noted not to have had a diagnosis of Parkinson's, and in a September 2011 rating decision, the RO denied service connection for Parkinson's disease. Furthermore, there is no objective competent and probative evidence suggesting any nexus between either osteoporosis or hand tremor and the Veteran's in-service exposure to Agent Orange, and neither he nor his representative have identified any. A lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau, 492 F.3d 1372. However, while the Veteran might believe that his osteoporosis and tremor of the hands are medically related to in-service Agent Orange exposure, this is a medical determination, not able to be made through mere lay observation, which the Veteran is not competent to make. The Board acknowledges the Veteran's spouse's testimony during his April 2013 Board hearing that she had been a medical professional for over 40 years and had been a surgery nurse, and that the Veteran's wife also contends that the his claimed disabilities are related to in-service Agent Orange exposure. However, while the Board greatly appreciates the spouse's testimony in this case, the Veteran's spouse has not shown, or contended to have, any medical expertise to provide a competent opinion on the medical issue of whether the Veteran's current osteoporosis and tremors of the hands are the result of Agent Orange exposure. Rather, in discussing her assertion of a nexus between the Veteran's disabilities and Agent Orange exposure, although she stated that she had been a medical professional for over 40 years, she also stated, importantly,that she was "not an expert either." Thus, the Board finds that, in this case, there has not been competent evidence that suggests a nexus between the Veteran's claimed disabilities and his in-service herbicide exposure years earlier that might indicate that either such disability might be associated with service regarding this claim in particular. It is important for the Veteran and his spouse to understand that the herbicide presumption list is based on extensive testing and numerous medical studies, and is constantly updated. Accordingly, service connection for osteoporosis and tremor of the hands must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by letter dated in December 2009, which informed the Veteran of all the elements required by Pelegrini II and Dingess/Hartman. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, a VA examination was not obtained for either service connection claim because the evidence did not surpass the low threshold set by McLendon. Where the evidence does not establish that a disability may be associated with service, there is no need to obtain a medical opinion regarding any such nexus. As discussed above, there is no medical or other competent evidence suggesting a nexus between either of the Veteran's claimed disabilities and in-service Agent Orange exposure, or any other such evidence that would warrant obtaining a medical nexus opinion. In this regard, the Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, as the only evidence that the Veteran's claimed disability is related to military service is the conclusory generalized statements of the Veteran and his spouse, which are unsupported by even speculative competent medical evidence. Accordingly, the Board finds that referral for a VA medical examination is not warranted. The Veteran's service treatment records, VA medical treatment records, identified private treatment records, and a written statement from the Veteran's wife have been obtained. Also, in Bryant v. Shinseki, the Court held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They 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. In this case, during the April 2013 Board personal hearing, the VLJ fully explained the issues on appeal. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans. The VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed osteoporosis and tremor of the hands, specifically regarding the onset of such disabilities, why the Veteran felt such disabilities were related to his service, and the medical evidence pertaining to his claims. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for osteoporosis, claimed as secondary to herbicide exposure, is denied. Service connection for tremor of the hands, claimed as secondary to herbicide exposure, is denied. REMAND While in the report of a January 2012 examination a VA examiner stated that the Veteran's hypertension was unlikely to be proximately due to or a result of his service-connected ischemic heart disease, as only about five to 10 percent of hypertension cases were thought to result from secondary causes, neither the VA examiner, nor any other examiner, has made any comment as to whether such ischemic heart disease has aggravated the Veteran's hypertension. In this regard, the Veteran has repeatedly asserted that he had no hypertension prior to his ischemic heart disease, and in May 2012 he submitted an August 2005 hospital record reflecting both treatment for an acute myocardial inferior infarction and that the Veteran at the time reported having no hypertension; VA treatment records reflect a diagnosis of hypertension by at least July 2009. The August 2005 record, along with another August 2005 hospital record also reflecting no history of hypertension, were submitted subsequent to the January 2012 examination and were not reviewed by the examiner. Thus, the Veteran has not been afforded an adequate opinion regarding the etiology of his hypertension. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to the VA examiner who conducted the January 2012 examination, and ask that an addendum opinion be provided regarding the etiology of any hypertension. Following a review of the claims file, to specifically include the August 2005 hospital records reflecting treatment for an acute myocardial inferior infarction and no history of hypertension, the examiner is requested to determine whether it is at least as likely as not (i.e. a 50 percent probability or more) that hypertension is either caused or aggravated (permanently worsened beyond its natural progression) by the Veteran's service-connected ischemic heart disease. A complete rationale for all opinions must be provided. If the January 2012 VA examiner is unavailable, the claims file should be forwarded to another appropriate examiner to provide the requested information. If the requested opinions cannot be provided without another examination of the Veteran, schedule him for a VA examination with an appropriate examiner to provide the requested opinions and information. The claims file and a copy of this Remand must be made available to and reviewed by the examiner. 2. After completing the above development, and any other development deemed necessary, readjudicate the issue remaining on appeal. If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs