Citation Nr: 1751210 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 10-21 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a disability manifested by joint and muscle pain, to include as due to exposure to herbicides. 2. Entitlement to service connection for hypothyroidism, to include as due to exposure to herbicides. 3. Entitlement to service connection for painful cysts on the body, to include as due to exposure to herbicides. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to October 1969, to include service for 18 months in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In October 2014, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the proceeding is associated with the electronic claims file. In December 2014, the Board remanded the claims for further development. They are now returned to the Board for further appellate action. The issues of entitlement to service connection for hypothyroidism and entitlement to service connection for painful cysts are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran is not shown to have a diagnosed disability manifested by joint and muscle pain. CONCLUSION OF LAW The criteria to establish service connection for a disability manifested by joint and muscle pain are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). 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 disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the evidence, in his January 2008 claim for service connection, the Veteran related that he began to experience muscle and joint pain in 2006. Subsequently, much of the evidence submitted was in regard to Raynaud's disease which he indicated caused joint and hand pain due to a loss of blood supply to the extremities. See February 2008 Correspondence. Notably, the Veteran filed a separate claim for service connection for Raynaud's disease which was denied in a September 2010 rating decision. The Veteran did not perfect a timely appeal following an April 2011 statement of the case. In the Board's December 2014 remand, the RO was instructed to schedule a VA examination to provide a diagnosis for any disorder related to joint and muscle pain currently present, or active during service and to state whether or not that disorder had onset during service or is otherwise related to service, to include exposure to herbicides. In an August 2015 letter, the Veteran was notified that the medical center would inform him of the date, time and place to report for an examination. The examination was scheduled to occur on November 23, 2015; however, the Veteran failed to appear and the Veteran did not provide good cause for missing the examination and did not respond to the June 2016 supplemental statement of the case or other subsequent correspondence relating to his appeal. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). When a claimant fails to report for an examination without good cause shown, the claim shall be considered based on the evidence of record. 38 C.F.R. § 3.655 (2016). Treatment records through October 2016 fail to show diagnosis of a disability manifested by muscle and joint pain. The existence of a current disability is the cornerstone of a claim for service connection and VA disability compensation. 38 U.S.C.A. § 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of a diagnosis of a disability manifested by joint and muscle pain, service connection for such disability cannot be granted. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for a disability manifested by joint and muscle pain must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for a disability manifested by joint and muscle pain is denied. REMAND The Board regrets additional delay, but finds that further development to fully satisfy the duty to assist is necessary prior to final adjudication of the remaining claims. The record reflects that the Veteran has a current diagnosis of hypothyroidism. The Veteran claimed onset was in March 1999. See January 2008 VA Form 21-526. He argues that that this condition is due to exposure to chemicals while serving in Vietnam, to specifically include Agent Orange and Tetrachlorodibenzoparadioxin (TCDD). See December 2009 Correspondence. Treatment records indicate the Veteran was assessed with hyperthyroidism in December 2000 and findings were compatible with Graves' disease. A medical record dated in January 2001 indicates Graves' disease with clinical symptoms of hypothyroidism. It was noted iodine ablation or surgery was discussed with the Veteran and the Veteran preferred to have iodine ablation. In December 2014, the Board remanded the claim for a VA examination to consider the etiology of his thyroid condition. In January 2015, following review of the claims file, the examiner determined that the Veteran was first diagnosed with hyperthyroidism in the 1990s. He underwent radioactive thyroid ablation and following ablation, he became hypothyroid and has since taken thyroid hormone replacement therapy with synthyroid. The examiner concluded that the Veteran's hypothyroidism is secondary to the treatment (radioactive iodine thyroid ablation) for his hyperthyroidism due to Graves' disease. The examiner noted that Graves' disease is not one of the conditions considered presumptively service-connected based on exposure to Agent Orange in Vietnam. The examiner concluded that there was "no evidence in the veteran's clinical record to suggest symptoms of Graves' disease were present during active duty or as a result of herbicide exposure." The Board finds that when looked at in the light most favorable to the Veteran, the record does not contain an adequate opinion as to whether his original thyroid condition, specifically hyperthyroidism, was related to exposure to chemical agents in Vietnam. If such a link were established, the Board finds that the criteria for service connection for hypothyroidism would be met as the evidence suggests hypothyroidism was a direct progression from his original thyroid problem that began in the mid-1990s. Although presumptive service connection cannot be granted for any thyroid condition that may be present, in addition to the presumptive regulations, a Veteran may establish service connection based on exposure to herbicide agents with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to herbicides does not preclude direct service connection for other conditions based on exposure to herbicides); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board finds that an opinion should be sought regarding a direct link between the Veteran's acquisition of hyperthyroidism (a thyroid condition) in the mid-1990s and conceded exposure to Agent Orange in Vietnam. In rendering such opinion, the examiner should also consider the Veteran's statements regarding exposure to the dioxin TCDD. Regarding the Veteran's claim for service connection for painful cysts on the body, the evidence demonstrates the Veteran had lipomas removed from his left forearms within 5 years of separation from service. In a December 2008 statement in support of claim, the Veteran indicated he had masses all over his body that were not present on his body before he served in Vietnam, but were present at discharge. He indicated treatment in the early 1970s. In a November 2009 buddy statement, the Veteran's wife indicated she had known him for more than 30 years and he had a "massive amount of lumps on his body from head to toe". In an April 2010 statement, the Veteran alleged that his lipomas or cysts were due to exposure to TCDD during service. He explained that when he entered the military, his skin and body were "smooth and free from cysts or lipomas, hives and rashes." He indicated he had lipomas removed from his left arm shortly after service and now had lipomas all over his body and they continued to appear. In a December 2010 buddy statement, December 2010 buddy statement, an individual indicated having known the Veteran before and after service in Vietnam and that the Veteran had "complaints of rapidly spreading cysts or lipomas since his discharge." She indicated she had seen and felt the lipomas he had removed shortly after separation from service. She stated he ignored them for awhile, but when they continued to appear, he had some removed. In December 2014, the Board remanded the claim for a VA examination. At the January 2015 VA examination, the Veteran was diagnosed as having benign cysts. The Veteran stated that multiple cysts started to form on his body during the year after he was discharged from the military. He stated two of the cysts were removed at that time, but in the years since he has had multiple cysts form along both arms, legs and trunk. Upon examination, 10 cysts were identified on each arm around 1 to 2 centimeters in diameter along with about 10 cysts on each leg 1 to 2 centimeters in diameter and about 10 cysts on the trunk 1 to 2 centimeters in diameter. The examiner noted that no indication of cysts appears in the Veteran's service treatment records. He stated that he was not "able to find any evidence to suggest a relationship between his military service and cyst formation". The examiner concluded that it was less likely than not that his multiple cysts are related to past military experience. The Board finds that remand is necessary to obtain an opinion that adequately addresses a possible direct relationship between the Veteran's recurrent cysts and exposure to herbicides while serving in Vietnam, to include Agent Orange and TCDD. Currently, the claims file contains VA treatment records through October 2016. On remand, relevant ongoing medical records should be requested. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Associate all VA treatment records from October 2016 to the present with the electronic claims file. 2. Provide the electronic claims file to a VA examiner to provide an addendum opinion as to whether a thyroid condition was at least as likely as not related to the Veteran's period of active duty service, to include exposure to Agent Orange/herbicide agents and TCDD in the Republic of Vietnam. After review of the claims folder and all the medical and lay evidence therein, the examiner should opine as to the following: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran was diagnosed with hyperthyroidism/Graves' disease (which subsequently through treatment resulted in hypothyroidism) as a result of a disease or injury incurred during his military service, including exposure to herbicide agents such as Agent Orange or TCDD. This opinion should focus on whether, in this Veteran's particular case, there was a relationship between conceded exposure to herbicide agents in Vietnam and this Veteran's development of a thyroid condition. It is understood that thyroid conditions are not on the list of diseases considered presumptively caused by exposure to herbicides. This opinion seeks a discussion as to direct causation. A rationale must accompany any opinion expressed. 3. Provide the electronic claims file to a VA examiner to provide an addendum opinion as to whether recurrent painful cysts are at least as likely as not related to the Veteran's period of active duty service, to include exposure to Agent Orange/herbicide agents and TCDD in the Republic of Vietnam. After review of the claims folder and all the medical and lay evidence therein, the examiner should opine as to the following: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran incurred numerous painful cysts on his arms, legs and trunk as a result of a disease or injury incurred during his military service, including exposure to herbicide agents such as Agent Orange or TCDD. This opinion should focus on whether, in this Veteran's particular case, there was a relationship between conceded exposure to herbicide agents in Vietnam and this Veteran's development of recurrent painful cysts over his body. It is understood that painful cysts are not on the list of diseases considered presumptively caused by exposure to herbicides. This opinion seeks a discussion as to direct causation. A rationale must accompany any opinion expressed. 4. After the development requested is completed, readjudicate the claims. If the benefits sought are not granted, furnish the Veteran a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs