Citation Nr: 1815254 Decision Date: 03/09/18 Archive Date: 03/19/18 DOCKET NO. 12-06 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a left hand disorder, to include as due to exposure to herbicide agents and/or as secondary to bilateral knee disorders. 2. Entitlement to service connection for hypertension, claimed as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Alexander Panio, Counsel INTRODUCTION The Veteran served on active duty from October 1964 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In July 2017, the Board remanded the case for additional development and it now returns for further appellate review. FINDINGS OF FACT 1. A left hand disorder did not have its onset during service, is not shown to be causally or etiologically related to any disease, injury, or incident during service or a service-connected disability, and arthritis did not manifest within one year of separation from active duty. 2. Hypertension did not have its onset during service, is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of separation from active duty. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left hand disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for entitlement to service connection for hypertension are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Neither the Veteran nor his representative has alleged any deficiency with respect to VA's duties to notify or assist. See Scott, supra (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 duty to assist argument). II. Analysis Service connection may be granted 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(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis or cardiovascular-renal disease, to include hypertension, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred 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. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. For purposes of the presumption, "herbicide agents" are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § 3.307(a)(6)(i). In light of the Veteran's service in Vietnam during the requisite period, he is presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). For veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). However, arthritis and hypertension are not included in the list of diseases acknowledged to be presumptively related to exposure to herbicide agents. In this regard, although VA has not conceded a relationship between hypertension and herbicides, it is significant to note that, prior to 2006, the National Academy of Sciences (NAS) placed hypertension in the "Inadequate or Insufficient Evidence" category. However, in its update in 2006, NAS elevated hypertension to the "Limited or Suggestive Evidence" category. Update 2012 provides the history of NAS changing the categorization of hypertension beginning in its 2006 Update and subsequent Updates. See 79 Fed. Reg. 20,308 (Apr. 11, 2014). Update 2012 notes that NAS has defined this category of limited or suggestive evidence to mean that the "evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." Id. at 20,309. Notwithstanding the foregoing presumption, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Left Hand Disorder The Veteran has been diagnosed with arthritis in his left hand and contends that service connection is warranted. In this regard, he claims that such is related to an in-service crush injury, his acknowledged exposure to herbicide agents, and/or as secondary to his bilateral knee disorders. Treatment records do not show a diagnosis of arthritis during service or within a year of separation and no left hand disorder was identified or noted at the Veteran's separation examination. Service treatment records do show a fracture of the distal phalanx of the 2nd digit of the left hand with contusion occurring in August 1966. The report indicated that his wound was cleansed, dressed, and a splint was applied. Post-service treatment records from 2001 and 2002 show the Veteran reported bilateral hand pain and was diagnosed with degenerative joint disease in both hands. In July 2009, the Veteran reported that he had been told by his primary care provider that he had rheumatoid arthritis. In November 2017, the Veteran underwent a VA examination to assess the nature and etiology of his left hand disorder. At such time, he reported having issues with the hand since service. He further indicated that, during service, his left hand was crushed while unloading shells and he was transferred to a field hospital, splinted, and sent back to the field. He stated his fingers were quite sore for a long time and, since the injury, he has had numbness in the distal 2nd and 3rd digits of the left hand and diffuse aching pain in both hands. He reported that a recent non-VA EMG found bilateral carpal tunnel syndrome and peripheral neuropathy. The examiner noted that x-rays taken the day of the examination showed degenerative changes at the carpometacarpal joint (which is near the wrist), as well as the 1st, 2nd, and 3rd metacarpophalangeal joints, which are proximal to the location of the crush injury. However, the distal interphalangeal joints of the affected fingers are unaffected by degenerative joint disease per the x-ray report. The examiner also noted that the Veteran has evidence of arthritic changes to the right hand in a consistent, symmetrical pattern as the left hand and that a crush injury to the left hand would not cause contralateral hand arthritis. The examiner concluded that the Veteran's current left hand arthritis was less likely than not related to service. Regarding the question of a nexus between the Veteran's left hand arthritis and his left finger crush injury during service, the Board finds that no such link is established. In this regard, the evidence of record does not show a diagnosis of arthritis during service, within a year of separation, or for many years following service. The Veteran has recently stated that he has had numbness in multiple digits of the left hand and aching pain in both hands since service. However, the in-service injury did not affect both hands or multiple fingers and the evidence of record does not contain complaints specific to the Veteran's left 2nd finger until after the Board remanded this claim. The first competent medical evidence of a left hand condition is not documented until many years after service. Moreover, when asked at his Board hearing whether the he had any trauma to his hand that could have caused his arthritis the Veteran answered "no." As such, a pattern of chronic and continuous symptomatology since service is not demonstrated. As to the question of a direct nexus between the current arthritis and service, the only competent opinion is from the November 2017 VA examiner, who stated that the condition is less likely than not related to service. The opinion is based on a physical examination and review of the claims file, and it contains a well-reasoned rationale supporting its conclusion, i.e., that the Veteran's arthritis is affecting both hands but not the joint that was injured in service and that the crush injury could not have produced the bilaterally symmetrical arthritis that the Veteran now manifests. While the Veteran is competent to report observable symptomatology, he is not considered competent to address the etiology of arthritis. Therefore, the Board finds the VA examiner's opinion to be the most probative evidence of record concerning a nexus between the Veteran's arthritis and his in-service injury. The Board notes that Veteran has also repeatedly stated that he has neuropathy of the hands and that he has been diagnosed with carpal tunnel syndrome by non-VA treatment providers. However the record does not contain a diagnosis of either condition and the Veteran has not identified or submitted any further releases for unobtained private treatment records. Moreover, the July 2017 Board decision denied service connection for peripheral neuropathy. As such, the Board finds a remand for further development in regard to such claimed diagnoses is not warranted. Moreover, as relevant to the Veteran's allegation that his left hand arthritis is related to his acknowledged in-service exposure to herbicide agents, he has only alleged that he had been told such by a physician. However, nowhere in his medical records is such statement made. Furthermore, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Finally, as the Veteran is not service-connected for bilateral knee disorders and, in fact, such claims were denied in the July 2017 Board decision, service connection for a left hand disorder as secondary to such disorders is without legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In summary, the Board finds that the Veteran's left hand disorder did not have its onset during service, is not shown to be causally or etiologically related to any disease, injury, or incident during service or a service-connected disability, and arthritis did not manifest within one year of separation from active duty. Consequently, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. B. Hypertension The Veteran has been diagnosed with hypertension and contends that it is related to his military service, to specifically include his acknowledged in-service exposure to herbicide agents. Service treatment records do not show a pattern of elevated blood pressure levels or a diagnosis of hypertension during service and the Veteran's blood pressure was normal at separation. Furthermore, the Veteran denied that his hypertension manifested within a year of separation and stated it was not diagnosed until the mid to late 1970s. On that basis and, as hypertension is not susceptible to lay observation, the requirements for service connection based on a presumption of chronicity are not met. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Likewise, without an in-service disease or event, the requirements for direct service connection are not met. 38 C.F.R. § 3.303. The Board requested a medical opinion regarding any possible association between the Veteran's hypertension and his in-service exposure to herbicide agents. In November 2017, a VA examiner addressed the National Academies of Science Institute of Medicine Report, Update 2010, which states: "Although VA did not find hypertension to be presumptively related to service in Vietnam (VA, 2010), on the basis of the total weight of available evidence, the current committee reaffirmed the conclusion of the committees for Update 2006 and for Update 2008 to categorize hypertension as having limited/suggestive evidence of association. As mandated by Public Law (PL) 102-4, the distinctions among categories are based on statistical association, not on strict causality. The conclusions are related to associations between exposure and outcomes in human populations, not to the likelihood that any individual's health problem is associated with or caused by the chemicals in question." See Nat'l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2010 (2011). The examiner noted that updates in 2014 found no new evidence base to support a change in the hypertension assigned category. In addition to noting that the report addressed only the possibility of associations between exposure and outcomes, and not the likelihood of conditions being associated with chemical exposure, the examiner explained that, although the exact etiology of primary hypertension remains unclear, a number of risk factors are strongly and independently associated with its development. The examiner explained that obesity and weight gain are major risk factors for hypertension and are also determinants of the rise in blood pressure that is commonly observed with aging. The examiner noted that the Veteran has lost weight and no longer requires antihypertensive therapy and no longer shows evidence of active hypertension. This indicates that, to the extent the Veteran had hypertension during the appeal period, it was directly associated with weight gain/loss. The examiner concluded that the Veteran's hypertension was less likely than not related to herbicide exposure. The only competent evidence of record concerning the relationship between the Veteran's hypertension and herbicide exposure is the November 2017 opinion, which is well reasoned and addresses both the medical literature and the Veteran's clinical presentation and history. In this regard, while the Veteran is competent to report observable symptomatology, he is not considered competent to address the etiology of hypertension. Therefore, the Board finds the VA examiner's opinion to be the most probative evidence of record concerning a nexus between the Veteran's hypertension and his in-service exposure to herbicide agents. In summary, the Board finds that hypertension did not have its onset during service, is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of separation from active duty. Consequently, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a left hand disorder is denied. Service connection for hypertension is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs