Citation Nr: 1805432	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  17-10 713	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota


THE ISSUE

Entitlement to service connection for severe muscle pain including pain involving the bilateral elbows, forearms, legs, knees and feet, to include as secondary to exposure to Agent Orange and other herbicides.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

T. Booker, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1968 to June 1970.  He died in August 2017.  The appellant is the Veteran's widow and she has been appointed as the substitute claimant in light of his demise.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision promulgated by the Department of Veterans Affairs (VA), Regional Office (RO), in Fargo, North Dakota.

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.  Accordingly, any future consideration of this case should take into consideration the existence of this electronic record.


FINDING OF FACT

The preponderance of the evidence of record weighs against finding that the Veteran had a muscle pain disability involving the bilateral elbows, forearms, legs, knees and feet due to exposure to Agent Orange or other herbicides, or otherwise related to service.


CONCLUSION OF LAW

A severe muscle pain disability involving the bilateral elbows, forearms, legs, knees and feet to include due to exposure to Agent Orange and other herbicides was not incurred or aggravated in service, and may not be presumed to have been so incurred.  38 U.S.C. §§ 1110, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).

II. Legal Criteria

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  In order to establish service connection, the following must be shown: (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, 1167 (Fed. Cir. 2004).  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.  

Service connection for specific diseases may be presumed if a veteran served on the land mass of the Republic of Vietnam during the Vietnam Era.  38 U.S.C. § 1116.  Veterans who served on active duty on the land mass of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307 (a)(6)(iii).

Additionally, service connection will be presumed for certain diseases, if manifested to a compensable degree within one year after discharge from active duty.  38 U.S.C. §§ 1101 (3), 1112(a)(1); 38 C.F.R. §§ 3.307, 3.309(a).  In this case, the Veteran did not manifest a chronic, tropical, prisoner of war related disease, or a disease associated with herbicide agents within the applicable time period, hence, the presumption does not apply.  

When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis.  Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994).

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303 (d).

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant).  When the evidence supports the claim or is in relative equipoise, the claim will be granted.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  If the preponderance of the evidence weighs against the claim, it must be denied.  See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 

III. Facts

The appellant asserts that the Veteran had a severe muscle pain disability that caused bilateral pain to the elbows, forearms, legs, knees and feet due to exposure to Agent Orange and other herbicides or, in the alternative, due to injury while in service.

The Veteran's service records show that he served in Vietnam; however, there is no basis in the evidence to establish service connection for a severe muscle pain disability due to exposure to Agent Orange or other herbicides. 

The appellant submits, and service treatment records support that the Veteran was injured during service.  The Veteran complained that he felt pain in his knees, ankles, and hips following Advanced Individual Training that required him to jump out of helicopters.  He also reported an injury to his forearms after boxes of ammunition fell on him while in service.  The Veteran stated that his forearms absorbed the brunt of the fall, causing significant pain and discomfort for three days after the injury.  He also expressed that the injury caused ongoing pain in his forearms.

The Veteran's service treatment records, however, do not reflect diagnosis or treatment for a muscle pain disability, nor is there evidence that a muscle pain disability subject to presumptive service connection was compensably disabling within a year of his separation from active duty.  38 C.F.R. § 3.307; 3.309.

A review of the Veteran's post-service medical records show that during a March 2001 evaluation, the Veteran denied experiencing ongoing pain.  In a November 2001 evaluation, the Veteran also denied experiencing pain, and discussed only having pain related to his right great toe when running.  An April 2009 records show a complaint of pain in the Veteran's hands, feet, and ankles, referencing a history of "gout-like symptoms".  In July 2009, the Veteran discussed the impact of his diet in alleviating pain in his hands and feet.  A September 2010 record shows that the Veteran complained of pain that he asserted began five years prior.  A January 2011 VA medical record reflects a complaint of muscle pain primarily affecting the Veteran's knees downward, including his ankles, feet, and shins.  At that time, the Veteran indicated that he had experienced the pain for about 40 years. 

The Veteran was diagnosed with non-service connected gout following complaints of pain in his hands, elbows, and lower extremities, including knees, ankles, and feet.

The Veteran's October 2016 VA medical record reflects a clinical dietitian's note regarding a nutrition related diagnosis of "chronic pain".  In December 2016, the Veteran complained of pain in the dorsum of his forearms at the "elbow and just below" that he attributed to service.

Subsequent records noted chronic pain in assessment notes, however, there is no pain related diagnosis of a muscular disability.

Although the appellant is sincere in her belief as to the etiology of a claimed muscle pain disability, there is no evidence corroborating the assertion that such a disability existed warranting entitlement to service connection.  Further, there is no competent evidence that otherwise establishes a nexus between a diagnosis of a muscle pain disability and the Veteran's military service.

The most probative medical evidence of record indicates that the Veteran did not have a severe muscle pain disability including pain involving the bilateral elbows, forearms, legs, knees and feet related to active duty service, to include due to exposure to Agent Orange and other herbicides.

The preponderance of the evidence is therefore against the claim for service connection for a severe muscle pain disability including pain involving the bilateral elbows, forearms, legs, knees and feet, to include as secondary to exposure to Agent Orange and other herbicides.  The appeal is denied.  

In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  38 U.S.C. § 5107 (b).
ORDER

Entitlement to service connection for severe muscle pain including pain involving the bilateral elbows, forearms, legs, knees and feet, to include as secondary to exposure to Agent Orange and other herbicides is denied.




______________________________________________
JOHN Z. JONES 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs