Citation Nr: 18144591 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 10-27 715A DATE: October 25, 2018 ORDER Entitlement to service connection for a joint disorder is denied. Entitlement to service connection for a skin disorder is denied. Entitlement to service connection for a neurological disorder is denied. FINDINGS OF FACT 1. A chronic joint disorder was not shown in service or many years thereafter; and, the evidence fails to establish that the Veteran’s diagnosed bilateral elbow bursitis, bilateral ankle tendonitis, bilateral shoulder impingement syndrome, and degenerative arthritis of the lumbar spine and bilateral feet, shoulders, wrists, knees, hands, hips, elbows, and ankles are etiologically related to active service. 2. A chronic skin disorder was not shown in service or many years thereafter; and, the evidence fails to establish that the Veteran’s diagnosed squamous cell/basal cell carcinomas are etiologically related to active service. 3. A chronic neurological disorder was not shown in service or many years thereafter; and, the evidence fails to establish that the Veteran’s diagnosed bilateral upper and lower extremity peripheral neuropathy is etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a joint disorder have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2018). 2. The criteria for service connection for a skin disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for a neurological disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The matter was remanded in June 2017 for additional development. That included obtaining private treatment records and VA examinations with medical opinions. In this regard, the Veteran did not respond to a September 2017 VA letter requesting authorization to obtain relevant private treatment records. VA examinations with the requested opinions were obtained in November 2017. There has been substantial compliance with the Remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 104-05 (2008); Dyment v. West, 13 Vet. App. 141 (1999). 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). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from active service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Additionally, Veterans who, during active service, served in 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 of non-exposure. 38 U.S.C. §§ 1116; 38 C.F.R. § 3.307. VA has interpreted that regulation to mean that the presumption of service connection applies to those service members who physically set foot in the Republic of Vietnam. See Haas v. Peake, 544 F.3d 1306, 1308 (Fed. Cir. 2008). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and early-onset peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. § 3.307, 3.309(e). One such disease was acute and subacute peripheral neuropathy. 38 C.F.R. § 3.309 (e). Note 2 to 38 C.F.R. § 3.309 (e) defined this disease as transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.307 (a)(6)(ii) requires that peripheral neuropathy must become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to be presumed service connected. An amendment to the regulation replaced the term “acute and subacute peripheral neuropathy” with the term “early-onset peripheral neuropathy.” VA also removed Note 2, with its requirement that the neuropathy be transient, appear within weeks or months of exposure to an herbicide agent, and resolve within two years of the date of onset. See Disease Associated With Exposure to Certain Herbicide Agents: Peripheral Neuropathy, 78 Fed. Reg. 54763 (Sept. 6, 2013). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Entitlement to service connection for joint, skin, and neurological disorders. The Veteran underwent VA back, foot, shoulder, wrist, knee, hand, hip, elbow, ankle, skin, and neurological examinations in November 2017. He was diagnosed with bilateral elbow bursitis; bilateral ankle tendonitis; bilateral shoulder impingement syndrome; degenerative arthritis of the lumbar spine and bilateral feet, shoulders, wrists, knees, hands, and hips; squamous cell/basal cell carcinomas; and bilateral upper extremity and lower extremity peripheral neuropathy. These diagnoses of joint, skin, and neurological disorders are sufficient to meet element (1) of Shedden. The Veteran asserts that he first experienced joint pain and symptoms of neuropathy in service. See February 2017 Hearing Transcript. He contends that his skin disorder is related to in-service sun exposure. In the alternative, he argues that his joint, skin, and neurological disorders are related to in-service herbicide exposure. His DD-214 shows that he had four years of active service, including service in Vietnam. VA has also conceded herbicide agent exposure. The preceding evidence of in-service symptomology and exposures is credible and sufficient to satisfy Shedden element (2). What remains for consideration is whether there is evidence of a nexus between the Veteran’s current diagnoses and asserted in-service symptomology and exposures. There is no competent evidence of such a nexus. The November 2017 examiner opined that the Veteran’s joint, skin, and neurological disorders are less likely as not related to service, including herbicide exposure. The opinion is found to be persuasive and based upon adequate rationale. There is also no competent medical opinion to the contrary. With respect to a joint disorder, the examiner noted the absence of documented joint issues or arthritis in the service treatment records. The examiner reasoned that age and the Veteran’s 41 years of physically demanding employment caring for horses on a ranch after service were the likely causes of his joint disabilities. The examiner found no medical evidence to support an association between the Veteran’s herbicide agent exposure and joint disabilities. Regarding a skin disorder, the examiner noted that skin cancers and actinic keratoses were confirmed in 2003, nearly four decades after the Veteran’s separation from service. Based on the record, the examiner found that it was much more likely that the Veteran’s skin carcinomas were caused by cumulative sun exposure from longstanding ranch work after service. The examiner found no medical evidence to support an association between the Veteran’s herbicide agent exposure and skin disabilities. For the neurological disorder, the examiner remarked that, by the Veteran’s own admission at the examination, peripheral neuropathy did not manifest until several decades after separation from service. The examiner was unable to establish a link between the Veteran’s neuropathy and service based on the record. In addition, the examiner did not indicate an association between the Veteran’s herbicide agent exposure and neurological disability. Turning to presumptive service connection, the record does not reflect a diagnosis of arthritis or peripheral neuropathy within one year of separation from service. The presumption of service connection based on herbicide agent exposure similarly necessitates a finding that the neuropathy(ies) manifested within a year of exposure. There is no such evidence in the present case. The Board acknowledges that the Veteran testified that he first noticed his neurological problems while in service. However, when he was examined in November 2017, he indicated that the initial onset of his peripheral neuropathy was in the 1990s. The report provided to the examiner is found to be more credible. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). The history provided at the personal hearing is much more self-serving. Pond v. West, 12 Vet. App. 341 (1999) Similarly, the Veteran’s lay reports of continuity of joint pain and neuropathy symptoms since service are outweighed by the objective evidence of record indicating that his disabilities had their onset many years after service. Presumptive service connection for joint and neurological disorders is not warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel