Citation Nr: 1337106 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-18 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a left hand neurological disability, including as secondary to herbicide exposure. 2. Entitlement to service connection for a left hip and lower extremity neurological disability, including as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from January 1967 to January 1971, including combat service in the Republic of Vietnam and his decorations include the Navy Achievement Medal with "Combat V" device, the Combat Action Ribbon and the Combat Air Crew Insignia with three stars. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board remanded the issue for further development in September 2012 to obtain any outstanding records and to afford the Veteran a VA examination. The examination and nexus opinion was provided in November 2012. In October 2012, VA requested that the Veteran provide an authorization for release for the outstanding records. The Veteran replied indicating only VA treatment records were authorized. Therefore, a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of entitlement to service connection for a left hand neurological disability 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. FINDING OF FACT The preponderance of the evidence shows that the Veteran's left hip and lower extremity neurological disability was not present in service or until many years thereafter and is not related to service, to an incident of service origin, or to Agent Orange exposure. CONCLUSION OF LAW The criteria for service connection for a left hip and lower extremity neurological disability have not been met. 38 U.S.C.A. §§ 1110, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), 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). The record shows that through VCAA letters dated September 2009, October 2009, and July 2010, the Veteran was informed of the information and evidence necessary to substantiate the claim for service connection. He was also advised of the types of evidence VA would assist in obtaining, as well as his own responsibilities as to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (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 decision on a claim for VA benefits. Further, 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 VCAA letter to the Veteran was provided in September 2009 prior to the initial unfavorable decision in December 2009. In this case, the Veteran was advised of the criteria for rating a disability and those governing effective dates of awards in the July 2010 letter, prior to the most recent adjudication by the RO, which cures any timing deficiency. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA examination reports, VA treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was afforded a VA examination in November 2012. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiner was provided with an accurate history, the Veteran's history and complaints were recorded, and the examination report sets forth detailed examination findings. As such, the examination report is adequate to decide the claim of service connection. Thus, further examination is not necessary regarding the issue on appeal. Service Connection - Laws and Regulations 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). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d) (2011), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he has a neurological disability that may have resulted from Agent Orange exposure during his Vietnam service. Under 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. § 3.309(e), as to Veterans who served in Vietnam during a certain time period, selected diseases may be presumed to have resulted from exposure to herbicide agents such as Agent Orange. According to the Veteran's service records, he served in the Republic of Vietnam during the Vietnam Era, therefore, his exposure to toxic herbicides is presumed. See 38 U.S.C.A. §§ 1116, 1154. The availability of presumptive service connection for a disability based on exposure to herbicides 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 C.F.R. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection - Lower Extremity The Veteran contends that he has neurological disability of the left hip and lower extremity that is causally related to service, specifically to exposure to herbicides during service. Regulations provide, in pertinent part, that if a veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air 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 further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); Type II diabetes mellitus, and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). For purposes of this section, 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. See 38 C.F.R. § 3.309(e); Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). VA recently expanded the list of diseases subject to the regulatory presumption of service connection due to exposure to herbicides while serving in the Republic of Vietnam. VA added ''Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina)'' immediately following ''Hodgkin's disease" in 38 C.F.R. § 3.309(e). See 75 Fed. Reg. 53,216 (2010). The Secretary of the Department of Veterans Affairs has decided 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. The Board notes that the record does not contain any diagnosis related to numbness of the left hip and lower extremity that matches any disease listed in 38 C.F.R. § 3.309(e), including the new regulation. The Board acknowledges that peripheral neuropathy is a disability listed, but as noted in the regulation must have onset within weeks or months of exposure to an herbicide agent and must resolve within two years of the date of onset. As the claim was filed in 2009, almost four decades after separation from service, this presumption does not apply. See 75 Fed. Reg. 53,216 (2010). The Veteran's service treatment records are silent regarding any complaints, treatment, or diagnosis of a neurological disability of the left hip and lower extremity. Post-service, the Veteran acknowledged in a January 2010 statement that it was not there when he was in the service, rather he has been gradually losing feeling over the years. He stated that a VA doctor informed him that his disability was related to herbicide exposure during service. A February 2011 VA EMG report showed electrophysiological studies of the left lower extremity consistent with L3-5 radiculopathy. The Veteran was afforded a VA examination in November 2012. The examiner noted the Veteran's history and complaints, reviewed the claims file, and examined the Veteran. The examiner opined that the Veteran's complaints of numbness in the left hip and left lower extremity less likely as not had its onset in service or within one year of separation, and is less likely than not related to the Veteran's period of military service, specifically including herbicide exposure. In providing his rationale, the examiner cited EMG studies showed the reason for his complaints of numbness in his lower extremity. The testing confirmed that the problem exists. He noted X-ray studies that are consistent with the Veteran's disability demonstrating lumbar multilevel degenerative spondylosis. Additionally, the examiner noted onset of the disability within the last 10 years with active service was more than 40 years ago. The November 2012 examiner also opined that the Veteran's symptoms are less likely than not secondary to diabetes. Although the Veteran originally asserted that his neurological disability may be due to diabetes, his claim of service connection for diabetes was denied in December 2009 due to a lack of a diagnosed disability. In the April 2010 substantive appeal, the Veteran did not appeal the issue. The November 2012 supports the finding of no diagnosis of diabetes showing that the Veteran denied a history of diabetes. Additionally, he noted the specific blood sugar readings spanning several years. He found the records to be inconsistent with a finding of diabetes. Therefore, without a current diagnosis of diabetes, the Veteran's neurological disability of the left hip and lower extremity may not be considered as secondary to diabetes. Otherwise, the only evidence of record relating the Veteran's current neurological disability of the left hip and lower extremity to his service are the Veteran's lay assertions that the disabilities are causally related to service. He has not reported that he has had left him and neurological problems since his combat service in Vietnam. The Board notes that the Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance. In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent. As to a nexus opinion relating any current neurological disability to his active service, the Board finds that the etiology of the Veteran's neurological disability of the left hip and lower extremity is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. The Veteran is certainly competent to testify as to symptoms such as numbness, which are non-medical in nature; however he is not competent to render a medical diagnosis or etiology. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also, Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). No medical evidence of record finds a relation between active duty service and the Veteran's neurological disability of the left hip and lower extremity. The only medical opinion in the file was provided by the VA examiner in November 2012. The examiner was well-informed and opined that it is not at least as likely as not that the Veteran's disability is due to military service. There is no contrary medical opinion of record. In sum, preponderance of the evidence shows that the Veteran's neurological disability of the left hip and lower extremity is neither related to nor had its onset in service, to include his combat service in Vietnam. Accordingly, the preponderance of the evidence is against the claim, and service connection for neurological disability of the left hip and lower extremity is denied. In denying this claim, the Board acknowledges the Veteran's valorous Vietnam combat service. Although the Board denies the claim, the Board is sympathetic to his appeal. The Board, however, is without authority to grant the claims on an equitable basis and instead is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Service connection for a left hip and lower extremity neurological disability, including as secondary to herbicide exposure. REMAND The Board notes that the Veteran submitted a claim of entitlement to service connection for a shoulder or neck disability in his October 2012 statement. The Veteran specifically noted that he injured his neck when he separated his AC joint playing football in the military. The record also contains evidence from the November 2012 VA examination, showing that the Veteran's upper left extremity and left hand numbness is due to his cervical degenerative spondylosis and neural foraminal narrowing. Given that claims of service connection for neck and shoulder disabilities have been submitted, and the Veteran's current neurological disability of the left upper extremity is related to a cervical disability, the issue should be deferred until the inextricably intertwined issue is adjudicated. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran appropriate notice pursuant to the Veterans Claims Administration Act (VCAA) under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes the criteria required for his neck and shoulder disability claims. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service left upper extremity symptoms, to include whether he had any shoulder, neck or neurological problems affecting his upper extremities while serving in combat in Vietnam. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Afford the Veteran an appropriate VA examination to determine the nature, extent, onset and etiology of shoulder or neck disability found to be present. The claims folder should be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should opine as to whether it is at least as likely as not that any neck or shoulder disability is related to or had its onset during service, or if arthritis is diagnosed, developed within one year of his discharge from active service. The examiner should also comment as to whether it is at least as likely as not that the any upper extremity neurological symptoms are related to his neck and/or shoulder condition, i.e., was caused or aggravated by his neck and/or shoulder disability. The rationale for all opinions expressed should be provided in a legible report. 4. Then adjudicate whether service connection is warranted for a neck and/or shoulder disability and thereafter readjudicate the appeal. If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs