Citation Nr: 1801293 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 17-31 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a bilateral lower leg disorder, to include arthritis and weakened bones, including as due to in-service herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from February 1964 to February 1966, including service in the Republic of Vietnam during the Vietnam Era. This matter comes before the Board of Veterans' Appeals (Board) from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The scope of a disability claim includes any disability that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and the other evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). In this case, the Veteran initially characterized his claim as one for weakened bones in his legs due to in service exposure to herbicides. At the time of his substantive appeal, he also noted the presence of arthritis, which is also shown in the VA clinical records. Accordingly, the Board has restyled the claim as shown in the case caption, above. The Veteran provided hearing testimony before the undersigned at a Travel Board Hearing in October 2017. A transcript of the hearing is within the record before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The evidence of record does not include a diagnosis of a disorder related to weakened bones in the lower extremities. 2. The Veteran's degenerative joint disease of the bilateral knees did not manifest during service or within one year of his separation from service and is not otherwise shown to be causally connected to service. CONCLUSION OF LAW The criteria for service connection for a bilateral lower leg disorder, to include arthritis and weakened bones, including due to in-service exposure to herbicides, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As an initial matter, the Board notes that neither the Veteran, nor his representative has 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). The Board finds no reason to delay the adjudication of this claim. The Veteran claims to have a disability of the bilateral lower extremities as a result of exposure to herbicides in service. Generally, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease diagnosed after discharge, where all evidence, including that pertinent to service, establishes that the disease was incurred therein. 38 C.F.R. § 3.303(d). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain 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 that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Weakened bones and arthritis are not disabilities included in the list of presumptive disabilities for herbicide exposed veterans. Id. Where a veteran served for at least 90 days during a period of war, or after December 31, 1946, and manifests arthritis to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Again, the Veteran in this case claims to have weakened bones in his legs and arthritis due to in-service herbicide exposure. VA has indeed conceded the Veteran's in-service exposure to herbicides. His diabetes is service-connected on the presumptive basis. However, the claimed disorders at issue in this appeal are not disorders for which presumptive service connection is warranted. 38 C.F.R. § 3.309(e). The Board recognizes that at the time of his claim, the Veteran submitted an article related to presumptive service connection for multiple myeloma for veterans with in-service herbicide exposure. The article indeed makes note that multiple myeloma, a cancer of the blood, causes certain ailments including weakened bones. However, there is no evidence in the record and the Veteran does not claim to now have or have ever had multiple myeloma. The article submitted does not suggest or imply that weakened bones without the presence of multiple myeloma is subject to presumptive service connection; nor is this disability found within the pertinent regulation. Thus, to the extent the Veteran claims presumptive service connection is warranted based upon his in-service herbicide exposure, there is no basis upon which to award the benefit under 38 C.F.R. § 3.309(e) because the disorders claimed are not on the list of such presumptive disorders. Further, the Board has reviewed the clinical evidence throughout the record and there is no evidence of clinical treatment for weakened bones or any disability manifested by weakened bones. Thus, there is no disability for which service connection can be granted for weakened bones in the legs. Brammer, 3 Vet. App. 223, 225. To the extent the Veteran is claiming service connection for the arthritis in his knees, this disability is shown in the VA clinical records as confirmed by x-ray examination. See 2013 to 2015 VA x-ray reports. The Veteran has not claimed that the arthritis initially manifested during service or as a result of any incident during service. The Board has reviewed the service treatment records and there is no indication of any symptoms or treatment for either knee during the Veteran's active service. The record is also devoid of evidence of any disorder of either knee at any time within one year of the Veteran's February 1966 separation from active service. Thus, there is no basis upon which to award presumptive service connection for the bilateral knee arthritis under 38 C.F.R. § 3.309(a). Moreover, the records available since the Veteran's active service show no mention of arthritis for many years after his 1966 separation from active service. Records dated between 1997 and 1999 related to the Veteran's psychiatric care show general physical examinations with no notes related to symptoms or diagnosis for the knees. An October 1999 discharge summary shows diagnoses such as hypertension, hypercholesterolemia and hemorrhoids, but no mention of any lower extremity disorder. It was not until June 2005 that the VA treatment records show the Veteran reports of left knee pain following an injury four months prior. A June 2011 mental health examination report included a physical examination and both lower extremities were noted as normal and the summary of diagnoses did not include arthritis or any other diagnosis related to the lower extremities. It was not until 2013 that x-ray examination noted degenerative joint disease in the knees. This, and subsequent reports, give no indication that arthritis or any symptoms of the knees are causally connected to the Veteran's active service. In fact, the Veteran has made no such suggestion. His claim has been solely based upon his in-service herbicide exposure. Thus, while the presence of bilateral knee arthritis is shown in the clinical records during the pendency of this claim, there is no basis upon which to award service connection for the disability because there is no suggestion within the record that the currently diagnosed bilateral knee arthritis is causally connected to the Veteran's active service. The Board has considered whether a VA examination is required with regard to the claim on appeal under VA's duty-to-assist provisions. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The evidence of record is such that the duty to obtain a medical examination is not triggered with regard to this claim. The Veteran does not allege an onset of symptoms related to the knees or legs during service and the STRs give no indication of such. The evidence also does not show any indication of arthritis within one year of his separation from active service. Rather, his claim is primarily that any lower extremity disorder is related to his in-service exposure to Agent Orange. Again, the disorders claimed are not subject to presumptive service connection for herbicide exposed Veterans. Further, there is no evidence of a disability manifested by weakened bones in this case, and the first medical evidence of arthritis is many years following his separation from service and, as is discussed in detail above, the record lacks evidence of a causal connection between the arthritis and the Veteran's service, to include his exposure to Agent Orange. These facts, therefore, do not give rise to the requirement to obtain a VA medical examination with regard to this claim. See McLendon, 20 Vet. App. at 85-86; see also, Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) (finding that a veteran is required to show some causal connection between his disability and his military service). The Veteran has provided no other medical evidence to support this claim. Although the Veteran might sincerely believe the claimed disorder is due to in-service exposure to herbicides, as a layperson, he is not competent to provide an opinion concerning this matter requiring medical expertise. The Veteran, although sincere in his belief, is also not competent to find that he has a current disorder manifested by weak bones, or that his current bilateral knee arthritis is causally connected to his active service. Accordingly, this claim must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert, 1 Vet. App. at 54. ORDER Entitlement to service connection for a bilateral lower leg disorder, to include arthritis and weakened bones, including as due to in-service herbicide exposure, is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs