Citation Nr: 1335840 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 08-31 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a musculoskeletal disorder, systemic or otherwise, to include as due to exposure to herbicides. 2. Entitlement to service connection for sexual dysfunction, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from September 1963 to March 1964 and from May 1964 to May 1985, with 2 tours of service in the Republic of Vietnam during the Vietnam Era. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at an RO hearing in September 2008, and at a Board hearing before the undersigned in March 2010. Transcripts of each hearing are associated with his claims folder. The matters listed on the cover page along with the issue of service connection for a skin condition were remanded in April 2010 for further development. Subsequently, in February 2012, the RO granted service connection for a skin disorder and so that issue is no longer on appeal. The issue of service connection for diabetes mellitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board does not have jurisdiction over it. However, it is inextricably intertwined with the matter of service connection for sexual dysfunction which is on appeal , and it is referred to the AOJ for appropriate action, including the action regarding it mentioned in the remand section of this decision. The issue of service connection for sexual dysfunction to include as due to exposure to herbicide 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 The Veteran's currently diagnosed chronic joint conditions were not manifest in service or, for arthritis, to a degree of 10 percent within 1 year of separation, and are unrelated to service. CONCLUSION OF LAW The criteria for service connection for a musculoskeletal disorder, systemic or otherwise, to include as due to exposure to herbicides, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in June 2006. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for the claim in July 2011; and afforded the Veteran the opportunity to give testimony before the Board. The examiner in July 2011 found the Veteran to have arthritis of his shoulders and strain of his hips and knees. The examiner physically evaluated the Veteran, reviewed the claims file, and provided adequate reasons for his conclusions regarding relationship to service. The representative claims otherwise in May 2013, citing Nieves-Rodriguez v. Peake, 22 Vet. App.295 (2008), as the examiner in July 2011 indicated that the Veteran's bilateral hip strain may be related to his back condition. However, the examiner indicated that the Veteran's back condition was unrelated to service. For all the reasons mentioned above, the examination was adequate. All known and available records relevant to the issue on appeal have been obtained, and the Veteran has not contended otherwise. The issue before the Board involves a claim of entitlement to service connection. 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 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. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). There is a presumption of herbicide exposure under 38 U.S.C.A. § 1116 (West 2002) for Veterans such as the claimant who set foot in Vietnam during the Vietnam Era. There is no presumption of service connection for arthritis or joint strain based on in-service herbicide exposure. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309. A January 2010 VA medical record shows that the Veteran has cervical spine degenerative disc disease which was demonstrated on MRI in October 2009. The July 2011 VA examination report shows that the Veteran currently has L4 degenerative disc disease as well as bilateral shoulder arthritis and chronic bilateral hip and knee strain. Service treatment records show that in June 1968, the Veteran complained of bumping his right knee 6 days prior, and of having tenderness over the superior aspect of his patella. X-rays were negative. On service retirement examination in February 1985, the Veteran denied having or having had leg cramps, painful or trick shoulder, recurrent back pain, or trick or locked knee, and his spine and musculoskeletal system were clinically evaluated as normal. Later that month, the Veteran complained of low back pain. Left straight leg raising to 25 degrees caused pain radiation into the right gluteus and low back area. The assessment was muscle spasm and rule out ruptured disc. A June 2003 VA medical record indicates that it was the Veteran's initial primary care provider visit. The impressions included degenerative disc disease. In December 2003, the Veteran complained of pain in both knees for 2 months. Lodine was prescribed. On VA evaluation in September 2005, the Veteran reported chronic back pain with sharp pain in his legs, foot, and lower hip. When the Veteran filed his claim in May 2006, he reported no treatment earlier than 2003. In a September 2006 statement, he indicated that he had been having problems with his hips, legs, and joints for years. In November 2007, the Veteran alleged that Agent Orange exposure had caused the problems with his bones. During the Veteran's September 2008 RO hearing, he testified that he had complained about sore bones and joints in service, and they gave him a rub potion. He attributed his complaints to being sore from doing training. On VA evaluation in October 2009, the Veteran complained of right shoulder pain since the prior Saturday. X-ray in December 2009 revealed possible calcific bursitis as well as acromioclavicular joint spurring and glenohumeral joint space narrowing. In January 2010, on evaluation for chronic neck pain, mild cervical spine degenerative disc disease with spondylitic narrowing was found on MRI. In March 2010, the Veteran complained of right shoulder pain for many years, and it was noted that he worked in a warehouse. X-rays showed degenerative joint disease of the right shoulder. In December 2010, a lumbar MRI showed degenerative joint disease at L4-L5 and L5-S1, and degenerative disc disease in the mid lumbar spine. On VA examination in July 2011, the Veteran reported that while in service, he developed knee and hip pain from physical training, went to sick call, and was put on Ben Gay and aspirin, and continued to have problems with his knees and hips until discharge. His shoulders started in the late 1970's, and he never went to sick call for them. The course since onset had been progressively worse. The Veteran reported that there had been a history of joint trauma in that he fell off a water tanker truck in 1970, but that he was just bruised. The Veteran's claims folder and medical records were reviewed. The diagnoses were bilateral shoulder arthritis, chronic bilateral hip and knee strain, and L4 degenerative disc disease. The examiner opined that the Veteran's joint conditions were less likely than not caused by or a result of service. The rationale was that records revealed no evidence of any chronic joint condition in service, and that currently, the preponderance of the evidence is against herbicides causing arthritis and chronic strain of joints. Based on the evidence, the Board concludes that service connection is not warranted for any musculoskeletal disorder, systemic or otherwise, due to in-service herbicides or as otherwise related to service. The preponderance of the evidence shows that chronic joint problems were not manifest in service and that arthritis was not manifest to a degree of 10 percent within 1 year of separation. Instead, the disorders shown were first diagnosed many years after service, after the Veteran had denied any pertinent history and complaints on service discharge examination in February 1985, and his normal examination at that time. The Veteran's contentions to the effect that his problems began in service and have continued since then are not supported. Chronic disease or injury in service is not supported by the service treatment records, and the Veteran is not competent to indicate when he first had either of them, as they are complex medical matters. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, chronicity since service is not supported by medical records, and there were many years between service and the first showing of any chronic disease or injury. The Veteran has attempted to relate his musculoskeletal disorders to in-service herbicide exposure. The provisions of 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307, 3.309 do not permit presumptive service connection for arthritis or joint strain, however. Moreover, the Veteran has not submitted any competent evidence indicating that his arthritis and joint strain are related to in-service herbicide exposure. His contentions about herbicides causing his bone problems are not competent, as he is a layperson and medical expertise is needed to opine on this complex medical matter. See Jandreau The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for a musculoskeletal disorder, systemic or otherwise, to include as due to exposure to herbicides, is not warranted. The appeal on this matter is denied. REMAND The matter of service connection for sexual dysfunction, to include as secondary to exposure to herbicides, is on appeal. In May 2013, during the course of the appeal, the Veteran's representative raised the matter of entitlement to service connection for diabetes mellitus and noted that on VA examination in July 2011, the examiner opined that the Veteran's erectile dysfunction was at least as likely as not aggravated by his diabetes mellitus. As the matter of service connection for sexual dysfunction is inextricably intertwined with the matter of service connection for diabetes mellitus, these matters are being remanded to the RO for further action. Accordingly, the case is REMANDED for the following action: 1. Develop and adjudicate the Veteran's claim for service connection for diabetes mellitus. If it is denied and he perfects an appeal of it, it should be brought before the Board. 2. After adjudicating the matter of service connection for diabetes mellitus, consider the matter of service connection for sexual dysfunction, including as secondary to diabetes mellitus. 3. Thereafter, readjudicate the Veteran's pending claim in light of any additional evidence added to the record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters 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 H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs