Citation Nr: 18157040 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 05-08 647 DATE: December 11, 2018 ORDER Entitlement to service connection for left ulnar neuropathy, to include as secondary to a service-connected skin disorder, is denied. FINDING OF FACT Despite the Veteran’s presumptive herbicide exposure due to his documented service in the Republic of Vietnam during the Vietnam War era, the preponderance of the evidence shows that left ulnar neuropathy was not present in service or until many years thereafter, it is not related to service or to an incident of service origin, and it is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for left ulnar neuropathy have not been satisfied. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.313. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1959 to June 1962 and from July 1962 to August 1979, including service in the Republic of Vietnam. The Veteran passed away in July 2016. In December 2016, the regional office (RO) granted the Veteran’s spouse’s request to be substituted as the claimant in this appeal. The Board of Veterans’ Appeal (Board) denied this appeal in an October 2012 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2014 decision, the Court vacated the Board’s decision and remanded the matter for further development and adjudication consistent with the Court’s decision. The Board again denied this appeal in a November 2015 decision. The Veteran appealed that decision to the Court. In a June 2017 Order, the Court vacated the November 2015 Board decision and remanded the matter to the Board for development consistent with the parties’ June 2017 Joint Motion for Remand (JMR). In April 2018, the Board remanded the claim for development in accordance with the JMR. Specifically, the Board remanded the appeal to obtain a credible etiology opinion as well as any outstanding medical records. Tellingly, in substantial compliance with the JMR, the Veterans’ Administration (VA) obtained VA treatment records in April 2018 and a new etiology opinion in October 2018. See 38 U.S.C. §§ 5103, 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination more than substantially complied with the Board’s remand order). a. The Hearing Request Before proceeding to the merits of the appeal, the Board will first address the appellant’s personal hearing request. In this regard, the post-remand record also shows that in August 2018 the appellant was provided notice of her October 2018 video hearing but she thereafter failed to show for that hearing. Later in October 2018, VA received the appellant’s request to reschedule her hearing. Later that month, VA notified the appellant that she had been scheduled for a new video hearing in November 2018. However, the appellant once again did not attend the hearing. Furthermore, a review of the record does not reveal a subsequent writing from the appellant as to her reason for not showing for her second hearing and/or requesting a third hearing date. The Board can not keep rescheduling hearing dates without a basis. The Board finds that the appellant has not provided good cause for failing to once again show for her hearing. See 38 C.F.R. §§ 20.704(d). In fact, the Board’s review of the record on appeal fails to disclose any indication that the claimant would attend another hearing if VA were again to delay final adjudication of her appeal by again scheduling her for a hearing. Given the above facts, the Board finds that the appellant has missed the opportunity to attend a hearing without cause and that final adjudication of her appeal therefore need not be delayed for VA to schedule her a third hearing date. See 38 C.F.R. §§ 20.704(d) In other words, the Board will not further delay final adjudication of this appeal by scheduling yet another hearing on no basis. The Service Connection Claim Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including an organic disease of the nervous system, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). As to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam war period. 38 C.F.R. § 3.307. For these Vietnam Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B–cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non–Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). In this regard, the Board notes that prior to September 2013, early onset peripheral neuropathy was described in the applicable regulation as acute or subacute peripheral neuropathy. See 38 C.F.R. § 3.309 (e) (2012). Effective in September 2013, VA clarified and expanded the terminology regarding peripheral neuropathy subject to the presumption of service connection based on herbicide exposure. See 78 Fed. Reg 54763-01, Sept. 6, 2013. The September 2013 amendment clarified that VA will not deny herbicide presumptive service connection for early onset peripheral neuropathy solely because the condition persisted for more than two years after the date of the last herbicide exposure. Id. However, it does not change the requirement, found at 38 C.F.R. § 3.307 (a)(6)(ii), that peripheral neuropathy must have become manifest to a degree of ten percent or more within one year after the veteran’s last in-service exposure to an herbicide agent in order to qualify for the herbicide presumption of service connection. In the Veterans and Agent Orange Update 2010, the National Academy of Sciences (NAS) Institute of Medicine (IOS) found that evidence did not support an association between herbicide exposure and delayed-onset peripheral neuropathy, which the NAS defined as having its onset more than one year after exposure. 78 Fed. Reg 54763-01, Sept. 6, 2013. For purposes of applying the herbicide presumption, “service in Vietnam” includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962, to May 7, 1975. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 38 C.F.R. § 3.310 was amended effective October 10, 2006, during the course of the Veteran’s appeal. That amendment imposed additional burdens on a claimant seeking to show that a service-connected disease or injury aggravated (as opposed to caused) disability for which service connection had not yet been established. The appropriate version of § 3.310 in the instant case is that version effective when the Veteran filed his claim in 2004, because that version is potentially more favorable to the Veteran. See Landgraf v. USI Film Products, 511 U.S. 244 (1994); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. The requirement of a current disability 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.” 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 the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Left Ulnar Neuropathy With the above laws and regulations in mind, the record shows the Veteran was diagnosed with left ulnar neuropathy. See, e.g., VA examination dated in August 2001. The Board also finds that during his lifetime the Veteran was competent to report on factual events he experienced like spilling a chemical on his left wrist while on active duty in 1968 and symptoms of his disability like pain and lost sensation or tingling and the appellant is competent to report on what she can see (such as, for example, the Veteran appearing to be in pain or have a weak grip). See Davidson, supra. a. 38 C.F.R. § 3.309(e) As to the herbicide exposure presumptions under 38 C.F.R. § 3.309(e), the record shows the Veteran served in the Republic of Vietnam during the Vietnam War and is therefore presumed to have herbicide exposure. See DD 214s; 38 U.S.C. § 1116(f). As to when the Veteran was first diagnosed with left ulnar neuropathy, during his lifetime he reported experiencing observable symptoms of left ulnar neuropathy while on active duty (i.e., immediately after spilling Agent Orange on his left wrist in 1968 while on active duty) and the appellant has continued these claims. See, e.g., VA treatment record dated in August 2007. However, the Board finds them competent to provide a diagnosis because this is complex medical question and they did not have the required medical expertise. See Davidson, supra. On the other hand, the Board finds that the post-service treatment records which first documented the Veteran being diagnosed with left ulnar neuropathy many years after service in 1997 (see, e.g., VA treatment records dated in December 1997 (diagnosing probable left ulnar neuropathy based on the Veteran’s reports of numbness of the left fifth finger) and June 2000 (noted a three year history of left hand-fifth digit numbness); VA examination dated in August 2001 (noted an approximate five year history of left hand-fifth digit numbness)) both competent and the most credible evidence of record as to when he was first diagnosed with the disease process because the diagnosis was provided after an examination of the Veteran by a medical professional. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). As noted above, the Veteran served on active duty from June 1959 to June 1962 and from July 1962 to August 1979. As cited above, three times, the Veteran, in his treatment, indicates this problem began in or around, very approximately, 1997, more than 17 years after the Veteran was discharged from service. These Veteran’s statements conflict with other Veteran statements suggesting the problem began either during or shortly after service. The Board has reviewed these records in great detail and finds that contemporaneous statements to his medical providers must be given higher probative weight than recollections (by him and his spouse) later. Simply stated, the Veteran’s own statements to his medical providers provides highly probative evidence against this own claim that the Board can not, unfortunately, ignore, indicating a problem that began many years after service. Given the above, the Board finds that ulnar neuropathy was first diagnosed after service (i.e., not within one year after the Veteran’s last in-service exposure to an herbicide agent), is not one of the specifically enumerated disease processes for which VA provides a presumption of in-service incurrence. See 38 C.F.R. § 3.309(e). In this regard, the Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. In this regard, the Board observes that VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended beyond specific disorders, based upon extensive scientific research. See, e.g., 68 Fed. Reg. 27,630 -27,641 (May 20, 2003); 67 Fed. Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (Jan. 11, 2001); 64 Fed. Reg. 59232 (Nov.2, 1999). Therefore, the Board finds that the laws and regulations governing service connection of a presumptive bases for herbicide related disease processes do not apply to the current appeal despite the Veteran’s presumptive herbicide exposure due to his documented service in the Republic of Vietnam during the Vietnam War era. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). b. 38 C.F.R. § 3.309(a) Likewise, because the record also does not show the Veteran being diagnosed with an organic disease of the nervous system (i.e., left ulnar neuropathy) in the first post-service year, but instead decades later in 1997, the Board finds that the presumptions found at 38 C.F.R. § 3.309(a) also do not apply to the current appeal. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307. c. 38 C.F.R. § 3.303 As to establishing service connection for left ulnar neuropathy based on proof of direct causation (see Stefl, supra) under 38 C.F.R. § 3.303(a), as noted above, the record shows the Veteran served in the Republic of Vietnam during the Vietnam War and is therefore presumed to have herbicide exposure. See DD 214s; 38 U.S.C. § 1116(f). Moreover, service treatment records document his complaints and treatment for left arm/wrist problems. See, e.g., service treatment records dated in September 1971, October 1971, November 1971, January 1972, February 1972, June 1972, July 1972, and January 1975. However, the above service treatment records (which the Board has reviewed in great detail) were uniform in treating the Veteran for a left wrist skin rash, diagnosed as lichen simplex chronicus, not a neurological disability. In fact, the service treatment records, including examinations dated in April 1962, December 1962, March 1964, September 1964, April 1969, June 1971, March 1974, May 1976, and March 1976 as well as the separation examination dated in July 1979, are negative for a disease or injury that could cause left ulnar neuropathy as well as negative for complaints, diagnoses, or treatment for left ulnar neuropathy. In this regard, at the April 1962, December 1962, March 1964, September 1964, April 1969, March 1974, March 1976, and July 1979 examinations the Veteran did not report a history of any adverse neurological symptomatology and specifically denied ever having neuritis or paralysis (again providing evidence against his own claim). Likewise, when examined in December 1962, March 1964, September 1964, April 1969, June 1971, March 1974, May 1975, and July 1979 it was opined that he had normal upper extremities and neurological examinations. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Therefore, the Board finds that the preponderance of the evidence is against the claim of service connection for left ulnar neuropathy despite the Veteran’s presumptive herbicide exposure. See 38 C.F.R. §§ 1110, 1116(f), 1131; 38 C.F.R. § 3.303(a); Owens, supra. The service records, when reviewed in detail, provides highly probative evidence against this claim. Similarly, the record does not show that the Veteran had a continued problem with his left ulnar neuropathy in and since service. In fact, as reported above, the service treatment records, including July 1979 separation examination, are negative for a disease or injury that could cause left ulnar neuropathy as well as negative for diagnosis of left ulnar neuropathy. Likewise, the post-service record is negative for any complaints, diagnoses, or treatment for left ulnar neuropathy until 1997; decades after the Veteran’s 1979 separation from his second period of active duty. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(b); VA treatment record dated in December 1997. As to establishing service connection for left ulnar neuropathy based on a link between the post-service diagnosis and military service under 38 C.F.R. § 3.303(d), as noted above an August 2007 VA treatment record documents the Veteran report that he had left ulnar symptoms ever since Agent Orange was spilled on his left wrist during service and the symptoms became a lot more pronounced in the 1990s. The VA treatment record thereafter states as follows: Complete absence of ulnar nerve function, etiology unknown. I feel that in light of the fact that there is no history of injury, with no evidence of cubital tunnel syndrome and with exposure to the nerve to a neurotoxic agent like Agent Orange, the most likely explanation for this ulnar nerve [damage] is chemical neurotmesis from the agent orange. I feel strongly that his present [condition] be assessed as being service related. Similarly, in a subsequent December 2007 VA treatment report, the treating physician stated as follows, “[u]lnar neuropathy - most likely secondary to neurochemical toxin found in agent orange. [The Veteran] has been evaluated by plastics who believe that the complete absence of ulnar nerve function is secondary to chemical neurotoxins found in agent orange.” Tellingly, the above 2007 VA physicians essentially concluded that because there was no other explanation for the Veteran’s left arm disability, and the fact that he was exposed to Agent Orange during service, that the Veteran’s left ulnar neuropathy had to be related to that herbicide exposure. The Board finds that the 2007 VA physician opinions lack probative value because neither physician provided an adequate rationale for their conclusion and provided deeply flawed logic. See Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). In other words, the Board finds that because the VA physicians logic is flawed (i.e., it does not follow that because the Veteran has left ulnar neuropathy and was exposed to herbicides in the Republic of Vietnam that that exposure must have been the cause of his left ulnar neuropathy), they lack probative value. Id. On the other hand, the post-remand VA examiner in October 2018 opined that the Veteran’s left ulnar neuropathy was not due to his military service including the Veteran’s presumptive exposure to herbicides due to his service in the Republic of Vietnam. The Board finds this opinion both credible and the most probative evidence of record because it is supported by a review of the record on appeal and an accurate citation to evidence found in the record including the Veteran’s presumptive exposure to herbicides due to his service in the Republic of Vietnam. See Owens, supra. Beyond this, both service and post-service evidence supports this finding, indicating a problem that began many years after service. As noted above, some of the Veteran’s own statements (indicating a problem that began many years after service) support this finding. Therefore, the Board finds that the most probative evidence of record shows that any of the Veteran’s left ulnar neuropathy was not due to his military service to include his presumptive herbicide exposure. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). d. 38 C.F.R. § 3.310 Lastly, the record is negative for a competent and credible opinion that shows that the Veteran’s ulnar neuropathy was caused or aggravated by a service-connected disability to include his skin disability which was treated with topical creams as well as a steroid injection. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310; also see Allen, supra. In fact, the post-remand VA examiner in October 2018 opined that the Veteran’s ulnar neuropathy was neither caused or aggravated by his service-connected skin disability which include treatment since 1970 with topical creams and a steroid injection in 2001. The Board finds this opinion is the most probative evidence of record because it is supported by a review of the record on appeal and an accurate citation to evidence found in the record, including the fact that the record shows that his service-connected skin disorder being treated with topical ointments as early as the 1970s and the claims that Veteran’s steroid injection treatment for his service-connected skin disorder in February 2001 caused his left ulnar neuropathy. See Owens, supra. The medical opinion is also not contradicted by any other medical evidence of record. See Colvin, supra. In addition, the Board finds that neither the Veteran during his life time or the appellant is competent to provide a direct or secondary nexus opinion because neither has the required medical expertise to provide answers to these complex medical questions. See Davidson, supra. Conclusion Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for left ulnar neuropathy. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. In reaching the above conclusion, the Board has not overlooked the fact that the record includes numerous pre-October 2018 VA etiology opinions. However, the April 2014 Court decision and June 2017 Court Order held, in substance, that the opinions provided by these VA examiners were inadequate. These Court holdings are controlling as to the current appeal. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the “law of the case” doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court’s prior action with respect to the same claim). In any event, if the Board were to consider these opinions, they provide, overall, more evidence against this claim. It is vital for the Appellant to understand that there is now a highly significant amount of evidence in this case against the claim that the Board has found to be of high probative weight, including some of the Veteran’s own prior statements. (Continued on the next page)   Therefore, the Board will neither discuss these earlier VA opinions or rely on their conclusions too support the above findings that the criteria for service connection for left ulnar neuropathy have not been met. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (holding that the Board’s analysis of the record need not discuss non-pertinent evidence but instead can focus specifically on what evidence is needed to substantiate the claim and what the evidence in the Veteran’s claim’s folders show, or fails to show, with respect to the claim). JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel