Citation Nr: 1715318 Decision Date: 05/08/17 Archive Date: 05/22/17 DOCKET NO. 10-10 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for residuals of a fever, claimed as dengue fever. 2. Entitlement to service connection for a bilateral hand disability. 3. Entitlement to service connection for a thoracic spine disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active Air Force service from July 1965 to July 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran and his spouse testified before the undersigned Acting Veterans Law Judge at an August 2010 Travel Board hearing. A transcript of the hearing is of record. This case was previously before the Board in May 2016, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. FINDINGS OF FACT 1. The Veteran has not been diagnosed with chronic residuals of a fever, claimed as dengue fever, during the appeal period. 2. A chronic bilateral hand disability was not manifest during active service; medical evidence establishes that current bilateral hand disability is not etiologically related to the Veteran's service. 3. A chronic thoracic spine disability was not manifest during active service and arthritis of the thoracic spine was not manifest to a compensable degree within one year of service discharge; any current thoracic spine disability is not otherwise etiologically related to such service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of dengue fever have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). 2. The criteria for service connection for a bilateral hand disability have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). 3. The criteria for service connection for a thoracic spine disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it 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. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). VA must also make reasonable efforts to assist the appellant 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 claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded a VA examination in conjunction with his claim. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159(c)(4) (2016); Wells v. Principi, 327 F.3d 1339, 1341 (Fed. Cir. 2002). This VA examination with addendum opinion are adequate for the purposes of the instant appeal, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provide an adequate basis for the diagnosis and opinions rendered. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As noted above, the instant appeal has been previously remanded in May 2016. There has been substantial compliance with the Board's remand directives, and adjudication of the appeal may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C.A. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service connection may be established on a direct basis for disability resulting from personal injury suffered or disease contracted in the 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 or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain disabilities, including arthritis, may be presumed to have been incurred in service where present to a compensable degree within 1 year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Veteran contends he suffers from residuals of dengue fever, a bilateral hand disability, and a thoracic spine disability that are directly related to his period of active service. For the reasons discussed below, the Board finds a preponderance of the evidence is against each of the Veteran's claims. 1. Residuals of Dengue Fever With respect to dengue fever, the Veteran's service treatment records indicate he was hospitalized in June 1967 with symptoms "favoring" a diagnosis of dengue fever, though he was ultimately diagnosed with a fever of undetermined origin. Significantly, however, regardless of whether the Veteran contracted dengue fever in service, he has not identified any competent medical records which support a diagnosis of chronic residuals of dengue fever, or of any infectious disease, at any point during the appeal period. The Veteran has provided lay testimony as to his belief that his current hand disability, medically identified as RS3PE, might be related to the fever he was treated for in service. (Tr.5). However, the Veteran testified that no medical provider had advised him that his in-service fever was related to his current hand disability. By contrast, the report of a June 2016 VA examination specifically finds there is "no clinical evidence of complications related to dengue fever." This clinical report sets forth the symptoms generally associated with dengue fever and compares the expected symptoms to the symptoms observed during the Veteran's service, explaining why the Veteran's final diagnosis at his hospital discharge in service was fever of unknown origin, rather than dengue fever. The examiner opined that a current hand disability which was diagnosed many years after the Veteran's service discharge was less than likely the result of the fever he experienced in service. The examiner further opined that the cause of the type of hand disability the Veteran had was not well understood, but there was no medical evidence linking it to dengue fever, but, rather, to a vascular endothelial growth factor. The medical evidence and opinion establishes that no clinical provider has identified any residual of dengue fever or of an acute fever of unknown origin. The clinical evidence that there is no current disability due to the Veteran's in-serve fever preponderates against the Veteran's lay opinion. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Even assuming arguendo that the Veteran contracted dengue fever during service, VA is not authorized to grant service connection for his symptomatology in service in the absence of any resulting chronic disability during this appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (a "current disability" exists if the diagnosed disability is present at the time of the claim or during the pendency of that claim). Absent a diagnosis of chronic residuals of fever treated in service at any point during the appeal period, the preponderance of the evidence weighs against the Veteran's claim, and the benefit-of-the-doubt rule does not apply. Service connection for residuals of a fever claimed as dengue fever must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Bilateral Hand and Thoracic Spine Disabilities The evidence reveals that the Veteran currently suffers from remitting symmetric, seronegative synovitis with pitting edema (RS3PE) of the hands and degenerative joint disease of the thoracic spine. However, the competent, probative evidence of record does not etiologically link the Veteran's current disabilities to his service or any incident therein. Service treatment records are absent complaints of, or treatment for, a hand condition during service. In May 1967, the Veteran complained of low back pain and was found to have full range of motion with little tenderness. No subsequent treatment for the back was sought. A June 1969 Report of Medical History for purposes of separation examination notes the Veteran denied a history of arthritis or rheumatism and bone, joint, or other deformities at service discharge. The Veteran did report that he was treated for back trouble by a chiropractor; the history does not indicate when that chiropractic treatment was received. The physician's notes indicate the Veteran had no complications or sequelae of the reported back trouble at the time of the separation examination. Further, the June 1969 Report of Medical Examination which found the Veteran qualified for separation reveals that the Veteran's upper extremities, spine, and musculoskeletal system were described as normal. As such, the Board finds that no chronic bilateral hand or thoracic spine disability was manifest during active service. When a disorder is first diagnosed after service, service connection is warranted for that condition if the competent evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). Post-service records reveal there is no evidence that the Veteran sought treatment for a back condition until approximately 1980, a period of approximately 11 years following service separation. The report of January 1992 VA examination reflects that the Veteran underwent lumbar surgery in January 1989. Records associated with the Veteran's December 1991 application for pension benefits reflect that the Veteran had worked as a mechanic, carpenter, plumber, and heavy equipment operator following service. The Veteran was first treated by rheumatology for wrist/finger joint synovitis in approximately 2008, nearly 40 years following service separation. While not dispositive of the issue, the Board may and will consider in its assessment of a service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). Furthermore, as the Veteran was not diagnosed with arthritis of the spine or hands within one year following service separation, or any other disability of the spine or hands which is defined as chronic for VA purposes, the presumption of service connection does not apply. See 38 C.F.R. §§ 3.307, 3.309(a). Finally, the Board has considered whether service connection may be awarded for arthritis of the spine based on continuity of symptomatology. See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the record reflects that the Veteran's earliest post-service reports of back disability or pain were in about 1980, over 10 years following his service separation. Therefore, continuity of symptomatology is not demonstrated, and service connection may not be presumed on this basis alone. The Veteran has not submitted a competent medical opinion in support of his claim of service connection. By contrast, a June 2016 VA examiner opined that it is less likely than not that either the current bilateral hand disability or thoracic spine disability are etiologically related to the Veteran's active service. With respect to RS3PE of the hands, the VA examiner noted there is no evidence of complaints of a hand condition in service, and the disability was diagnosed several years after he left service, following post-service employment as a mechanic, plumber, carpenter, and heavy equipment operator. The examiner noted that the pathophysiology of RS3PE remains unknown, and the negative etiological opinion was based on a review of the medical literature, including that related to dengue fever. With respect to a thoracolumbar spine disability, the examiner noted a low back degenerative condition since the 1980s without evidence of back trauma during service. In a January 1992 opinion, the Veteran's private chiropractor related the Veteran's back condition to the Veteran's post-service occupation, which involved heavy manual labor. In sum, the Board finds that there is no evidence of a bilateral hand or thoracic spine disability in service. Further, the presumption of service connection does not apply, as arthritis was not manifest within one year of service discharge, and there is no competent, credible evidence of continuity of symptomatology since service. The threshold question therefore is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current disabilities and his period of active service or to a service-connected disability. The preponderance of the evidence is against this aspect of the Veteran's claim. The Veteran has not produced a competent medical opinion in support of his claim, and a probative VA opinion provides negative etiological opinions addressing both the claimed hand and spine disabilities. The Board acknowledges that the Veteran himself has claimed that he suffers from a bilateral hand disability and a thoracolumbar spine disability as directly related to his active service. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain and swelling; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the Veteran's lay assertions of medical diagnosis or etiology cannot constitute competent evidence upon which to grant the claim for service connection, and the Board affords these statements little probative value. Latham v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for both a bilateral hand and thoracic spine disability, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107. ORDER Service connection for residuals of dengue fever is denied. Service connection for a bilateral hand disability is denied. Service connection for a thoracic spine disability is denied. ____________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs