Citation Nr: 1343514 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 03-26 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a bilateral hand disorder. 2. Entitlement to service connection for prostate cancer. 3. Entitlement to an effective date prior to August 15, 2000, for the award of a 10 percent rating for residuals of a right foot sprain. 4. Entitlement to a rating in excess of 10 percent for residuals of a right foot sprain. REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty from November 1979 to July 1986, and from February 1987 to December 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from decisions rendered by the Louisville, Kentucky Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction of these appeals was subsequently transferred to the Newark, New Jersey RO. In January 2010, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2010, the Board denied reopening a claim for service connection for prostate cancer. The Board remanded the remaining claims on appeal. The decision to deny reopening service connection for prostate cancer was appealed to the Veterans Claims Court. In November 2010, the Court granted a Joint Motion for Remand and vacated the Board's decision. In June 2011, the Board reopened the claim for service connection for prostate cancer and remanded it for additional development. Most recently, in September 2013, the RO issued a supplemental statement of the case in which it continued the denial of the Veteran's claims. The claim for an increased rating for service-connected residuals of a right foot sprain is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDINGS OF FACT 1. A bilateral hand disability is not causally or etiologically related to service, to include exposure to hydraulic fluid, and arthritis of the hands did not manifest to a compensable degree within one year of his discharge. 2. Prostate cancer was not manifested in service or in the first postservice year, and the current prostate cancer is not related to service, to include as due to exposure to ionizing radiation therein. 3. The Veteran's claim for an increased rating for service-connected right foot disability was received on August 15, 2000. There is no evidence of an earlier informal or formal claim. It was not factually ascertainable prior to August 15, 2000, that an increase in disability occurred. CONCLUSIONS OF LAW 1. A bilateral hand disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.306, 3.307, 3.309 (2013). 2. Prostate cancer was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2013). 3. The criteria for an effective date prior to August 15, 2000, for the assignment of a 10 percent rating for residuals of a right foot sprain have not been met. 38 U.S.C.A. §§ 5103(a), 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.155, 3.157, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to his claims. Service Connection for a Bilateral Hand Disorder The Veteran contends that a current bilateral hand disability is due to exposure to aircraft hydraulic fluid during his Air Force service. In particular, he describes performing maintenance work on the gun systems of A-10 aircraft which required him to submerge his hands into vats of hydraulic fluid. He reports that he currently has pain in the hand joints with occasional numbing. Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of certain statutory presumptions, if applicable. 38 C.F.R. § 3.303(a). Regulations also provide that 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. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection the evidence must show: (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 (Fed. Cir. 2004). The Veteran is diagnosed with bilateral hand first carpometacarpal degenerative joint disease. Degenerative joint disease is a form of arthritis which is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Board has reviewed the relevant evidence but finds that the preponderance of the evidence is against the claim. First, as it pertains to presumptive service connection, the Veteran's service treatment records do not show treatment for a hand condition caused by exposure to hydraulic fluid. Additionally, upon separation from service, he did not report any hand condition and a clinical evaluation of the extremities was normal. Thus, arthritis of the hands was not shown during service. Additionally, there is no evidence of arthritis in the first post-service year. As such, the presumptive provisions of law set forth above are not for application. The Board also finds that service connection is not warranted when considering the three Shedden factors identified above. While the evidence shows a current hand disability manifested by degenerative joint disease, it does not show an injury or disease caused by exposure to hydraulic fluid in service, nor does the probative evidence show that a current hand disability is otherwise related to his active military service. While the Board does not dispute the allegation that the Veteran handled hydraulic fluid as part of his job responsibilities in service, the fact remains that it did not result in a finding of a disability in service. Moreover, there is no medical evidence showing a hand disability for several years following service discharge. While he has reported experiencing numbing symptoms since service discharge, the Board finds it significant that there were no reports or findings of any hand condition upon VA examination in 1991. The private medical records do not show treatment for any hand condition. The private records from Dr. B. dated since 2004 only show isolated reports of any hand condition. Significantly, the only medical opinion evidence addressing the etiology of the current hand disability weighs against the claim. The VA examiner in July 2010 reviewed the Veteran's claims file and considered his history, including statements regarding exposure to hydraulic fluid in service, but found that the current disability was most likely due to the aging process. The examiner provided a sufficient rationale for the opinion, noting that exposure to hydraulic fluid may cause skin irritation but was unlikely to produce the current symptoms. The examiner further noted that the first carpometacarpal joint was a very common area to develop degenerative joint disease. The Board has considered the Veteran's statement addressing the etiology of the current bilateral hand disability. He is competent to describe his current hand symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the matter of determining the etiology of degenerative joint disease and whether it is related to exposure to hydraulic fluid is a complex medical question, and well beyond the limits of lay competence. To the extent that he is competent to offer an opinion on the etiology of the disability, his opinion is afforded less probative weight than the well-reasoned VA examiner's opinion. Thus, the weight of the evidence indicates that the Veteran's current bilateral hand disorder was not incurred in service, to include as a result of exposure to hydraulic fluid in service and cannot be presumed to have been incurred in service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. Service Connection for Prostate Cancer The Veteran attributes prostate cancer to ionizing radiation exposure during his service in both the Air Force and the Navy. He describes handling B-28 and B-61 nuclear gravity bombs and the SCRAM nuclear missile while in the Air Force, and handling depleted uranium rounds while in the Navy. The Board has considered his contentions but finds that the preponderance of the evidence weighs against the claim. The evidence shows that prostate cancer was initially diagnosed in 1996, several years following discharge from service. There is no contention that symptoms of prostate cancer were first experienced by the Veteran in service or that prostate cancer is otherwise directly related to service. As such, the Board will focus on the Veteran's primary argument that prostate cancer is due to exposure to ionizing radiation. In addition to the laws and regulations cited above, service connection may also be granted as a matter of presumption. Significantly, certain chronic diseases, such as malignant tumors, although not manifested during service, may be service-connected if manifest within certain prescribed periods following service discharge. Malignant tumors, for instance, must be manifest to a degree of 10 percent within one year of service discharge. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Here, prostate cancer was not manifest until 2006, several years after service discharge. As such, these presumptive provisions are not applicable. In addition, certain radiogenic diseases and cancers have been presumptively associated with exposure to radiation. See 38 C.F.R. § 3.309. Prostate cancer, however, is not among the listed cancers that are associated with radiation-exposed veterans. See 38 C.F.R. § 3.309(d). It is, however, a "radiogenic disease" and requires VA to accomplish certain actions prior to adjudicating the claim. 38 C.F.R. § 3.311 (2013). Where a presumption is found inapplicable, however, a claimant is not precluded from establishing service connection for disability due to proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Here, the Board finds that prostate cancer is not etiologically related to service to include his exposure in service to ionizing radiation. The Board finds the ionizing radiation dose estimates provided and the opinion from VA's Chief Public Health and Environmental Hazards Officer constitute the most probative evidence addressing the amount of exposure of ionizing radiation and relationship between such exposure and prostate cancer. For instance, the estimate of his radiation exposure in the Air Force was only 685 rem. The Headquarters Air Force Safety Center concluded that the Veteran's duties in service did not involve in a maintenance activity that would exposed him to unsealed systems or to spalling metal. The Department of the Navy, Naval Dosimetry Center found no reports of exposure to ionizing radiation. Further, VA's Chief Public Health and Environmental Hazards Officer found that it was unlikely that prostate cancer can be attributed to exposure to ionizing radiation. The physician assumed a total ionizing dose of radiation of .658 rem. The Veteran has not submitted medical opinion evidence in support of his claim. While the Board has considered his lay testimony, it finds that he does not have the expertise to provide an opinion as to quantify the amount of exposure to ionizing radiation or the relationship between such exposure and the subsequent development of prostate cancer. In short, the evidence of record does show that the Veteran had in-service exposure to some ionizing radiation. Prostate cancer, however, was not developed until 1996, six years after service and no medical professional has ever linked the Veteran's prostate cancer to any incident of service. Indeed, there are medical opinions to the contrary. As such, the Board concludes service connection must be denied. As reflected by the discussion above, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt rule does not apply, and the appeal is denied. Earlier Effective Date for Right Ankle The Veteran seeks an effective date prior to August 15, 2000, for the assignment of a 10 percent disability rating for residuals of a right foot sprain. He contends that an effective date of 1991 is warranted so he can get offset VA compensation from severance payments from the military. During the hearing before the undersigned, he testified that he filed a claim for increase prior to August 2000 but did not remember the outcome. Generally, "the effective date of an award based on . . . a claim for increase . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A § 5110(a). However, the effective date may date back as much as one year before the date of the application for increase if "it is factually ascertainable that an increase in disability had occurred" within that time frame. 38 C.F.R. § 3.400(o)(2) (2013); see 38 U.S.C.A § 5110(b)(2). "Once a formal claim for pension or compensation has been allowed," receipt of a VA examination or hospitalization report "will be accepted as an informal claim for increased benefits." 38 C.F.R. § 3.157(b) (2013). The Board has reviewed the evidence but finds that an earlier effective date is not warranted. First, there is no legal basis for an earlier date based on the Veteran's somewhat unclear contention regarding severance pay. This appears to be an argument for an equitable resolution and the Board does not have jurisdiction to adjudicate a claim for equitable relief. Service connection for residuals of a right foot sprain with posterior calcaneal spur was granted by way of an April 1991 RO decision. An initial non-compensable evaluation was assigned, effective January 1, 1991. The Veteran's formal application for an increased rating for the service-connected disability was received on August 15, 2000. The Board has reviewed the record for evidence of an earlier formal claim but can find none. Following the 1991 RO decision, there was an additional application for service connection in December 1996, however, it pertained to prostate cancer and made no reference to the right foot disability. Similarly, the medical evidence associated with the file prior to August 15, 2000 does not reveal evidence of an informal claim for increased rating. Rather, the evidence associated with the claims file prior to the August 15, 2000 claim pertains to the claim for prostate cancer. Finally, because the evidence pertains to disability other than the right foot disability, it is not factually ascertainable in the one year prior to the August 15, 2000 claim that an increase in the disability occurred. As such, August 15, 2000 is the earliest effective date permitted under law. In reaching this decision, the Board has considered the doctrine of reasonable doubt, but finds that this doctrine is not for application in this case, as the preponderance of the evidence is against the Veteran's claim for an effective date prior to August 15, 2000 for a 10 percent for his service-connected right foot disability. Finally, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. A notice letter was sent to the Veteran in May 2002, prior to the initial adjudication of the claims on appeal. The letter informed him of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. He was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). VA sent another letter in September 2006 that also provided notice as to how to substantiate the claims. While this letter was subsequent to the initial adjudication of the claims, the RO reconsidered the claims in a supplemental statement of the case. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of relevant records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. In addition, there has been substantial compliance with the Board's remand directives. The RO has obtained the relevant VA treatment records. The Veteran also submitted lay statements. The RO also conducted significant development pursuant to 38 C.F.R. § 3.311 in order to obtain a radiation dose estimate and obtain an opinion as to the etiology of prostate cancer. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded a VA medical examination in July 2010 for the bilateral hand disability. The examiner, a medical professional, obtained an accurate history and listened to the Veteran's assertions. The examiner provided the Board with a well reasoned opinion and sufficient information to adjudicate the claim. Therefore, the Board finds that the examination is adequate and contains sufficient information to decide the issues on appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. ORDER Service connection for a bilateral hand disorder is denied. Service connection for prostate cancer is denied. An effective date prior to August 15, 2000, for the award of a 10 percent rating for residuals of a right foot sprain is denied. REMAND Unfortunately, the claim for an increased rating for the right foot disability must be remanded to the RO due to noncompliance with remand directives articulated by the Board in May 2010. In particular, the RO/AMC was directed to obtain the Veteran's VA treatment records for the period from March 2007 to present from the East Orange VA Medical Center and to afford the Veteran a new VA examination. An examination was conducted in June 2010; however, it does not appear that the VA treatment records were obtained. Accordingly, this matter is REMANDED for the following actions: 1. Obtain the Veteran's VA outpatient treatment records for service-connected right foot disability at the East Orange VAMC for the period from March 2007 to present. 2. After completing the above development, and any other development deemed necessary, readjudicate the issue 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). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs