Citation Nr: 1824784 Decision Date: 04/24/18 Archive Date: 05/03/18 DOCKET NO. 14-20 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for cervical dystonia, to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD E. Mine, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1958 to September 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). By way of background, the issue on appeal was originally denied in an August 2003 rating decision. In an August 2016 decision, the Board determined that new and material evidence had been received to reopen the claim, and remanded the claim for additional development. The Veteran and his spouse testified at an April 2016 Travel Board hearing before the undersigned Veterans Law Judge (VLJ). FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's cervical dystonia is related to service, to include as due to the Veteran's herbicide exposure in service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for cervical dystonia have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 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 duty to assist argument). Accordingly, the Board will address the merits of the claim. II. Service Connection The Veteran has asserted that he is entitled to presumptive service connection due to exposure to herbicide agents while serving in the Republic of Vietnam, or in the alternative, that he is entitled to direct service connection as a result of exposure to herbicide agents. If a veteran was exposed to an herbicide agent during service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, certain enumerated diseases shall be presumptively service-connected, even where there is no record of such disease during service, provided that the disease is manifested to a compensable degree as set forth in 38 C.F.R. § 3.307, and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met. See 38 C.F.R. § 3.309(e); see also 38 C.F.R. § 3.307(a)(6)(ii). However, the VA Secretary 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. See Notice: Diseases Not Associated with Exposure to Certain Herbicide Agents, 61 Fed. Reg. 59232 (Nov. 2, 1999). Notwithstanding the foregoing presumptive provision, a claimant is not precluded from establishing service connection for disability due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Regarding his claim for presumptive service connection, the Veteran's service records indicate that he served in the Republic of Vietnam in 1966, and therefore in-service exposure herbicide agents is conceded. See November 1966 military personnel record; December 1967 DD Form 214. However, as cervical dystonia is not listed as a disease for which presumptive service connection is possible, service connection is not warranted on a presumptive basis. See 38 C.F.R. § 3.309(e). In the alternative, the Veteran, his wife, and his daughter have asserted that cervical dystonia is a similar disorder to Parkinson's disease and the Veteran is therefore entitled to presumptive service connection based on herbicide exposure, or that his in-service herbicide exposure directly caused his cervical dystonia and he is entitled to direct service connection. See, e.g., April 2016 hearing transcript; November 2016 spouse statement; November 2016 daughter statement. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran has been given a diagnosis of cervical dystonia, and thus the first Shedden element is met. See, e.g., private treatment record dated in February 2000. There is, however, no evidence of complaints of, treatment for, symptoms related to, or a diagnosis of cervical dystonia during the Veteran's active duty service. See, e.g., July 1958 entrance medical examination; April 1979 retirement medical examination. The Veteran submitted a November 2016 private medical opinion from Dr. C.B., a private physician, who reported treating the Veteran in 1999 for complaints of uncontrollable neck movement. Dr. C.B. provided an assessment of dystonia secondary to Agent Orange exposure. The doctor opined that, "It is well known that agent orange can cause muscle disease, neurological disease, as well as dystonia and these problems may not manifest themselves until the service man is years and sometimes decades post-exposure." In support of the opinion, Dr. C.B. provided the abstract from a medical article titled "Dystonia and tremor following exposure to 2,3,7,8-tetracholorodibenzo-p-dioxin." The abstract indicated a relationship between dystonic writer's cramp and/or other action dystonias of the hands and herbicide exposure. None of the involved individuals had a family history of dystonia, and all 24 dated the onset of the dystonia to the first two to three years subsequent to their toxic exposure. The dystonias varied in severity but were usually mild. No other types of dystonic involvement were recognized. According to the abstract, this was the first report relating and type of dystonia to prior dioxin exposure and the first report relating action dystonia, such as dystonic writer's cramp to toxic exposure of any type. The Veteran was afforded a VA examination in March 2017. The Veteran reported that he had experienced spasmodic torticollis since 1999. He denied any prior history of head or neck injury, exposure to neuroleptics or other dopamine blockers, and reported no family history of any neurologic condition. The examiner noted that the Veteran had been diagnosed with dystonia, specifically left torticollis with intermittent dystonia head-tremor, mild to moderate. The examiner noted a July 2016 Medscape article that explained that torticollis with dystonic components or major cervical dystonia occasionally occurs as part of the overall clinical picture of Parkinson disease, and should be considered a part of the same degenerative process. However, the examiner opined that the Veteran had no features of Parkinsonism at the time, and the diagnosis was torticollis, likely idiopathic, and not Parkinson 's disease. The RO obtained an addendum VA medical opinion in June 2017. The examiner noted that the Veteran's condition emerged 20 years after release from active military service, and was reported to be progressive since 1999 (20 years post discharge). The examiner explained that most cases of torticollis are idiopathic, and reported that the claims file did not contain any evidence of a head or neck injury, or exposure to neuroleptics which are more recognized causes of cervical dystonia. Further, the examiner noted, there was no mention of acute/sub-acute symptoms of herbicide exposure. The examiner explained that the contribution of herbicides in producing dystonia was unclear, the lag period was unclear, and the degree of exposure required was not known. Noting in addition that genetic predisposition to environmental toxins along with threshold exposure MAY [emphasis in original] play a role in certain movement disorders; however, the threshold is not defined and the genetic factors are not clear. Ultimately, the examiner concluded that an etiological opinion could not be provided without resorting to speculation. The Board requested an expert medical opinion in November 2017. The Board requested that the expert provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's cervical dystonia had its onset during service, or was otherwise attributable to the Veteran's service, to include his presumed exposure to herbicides in service. In response to Board's request, in January 2018, Dr. I.K., a VA staff neurologist and professor in the Department of Neurology at the University of California, Davis, addressed the Board's direct query, and additionally opined as to whether cervical dystonia is a manifestation of, or in some manner related to Parkinson disease. Based on review of the Veteran's entire claims file, as well as the current state of knowledge as to the relationship between cervical dystonia and idiopathic Parkinson disease (IPD), Dr. I.K. opined that it was more likely than not that the Veteran's cervical dystonia was not related to exposure to Agent Orange. Further, the Dr. I.K. opined that it was also not likely that the Veteran's long term cervical dystonia, in the absence of other manifestations of IPD, is a manifestation of or related to IPD, and therefore, more likely than not, not related to the Veteran's presumptive exposure to Agent Orange. Dr. I.K. stated that although the Veteran had evidenced symptoms of cervical dystonia since 1999, he had no manifestation of the cardinal symptoms of IPD on his March 2017 VA medical examination. Dr. I.K. explained that the most common cause of cervical dystonia was idiopathic or 'unknown,' followed by neck/head trauma or treatment with neuroleptic or dopamine receptor blocking agents, all of which the Veteran had denied. The Veteran also had no family medical history for dystonia or other neurologic diseases. Dr. I.K. noted that there are many types of dystonias, some of which, such as hand or limb dystonia, are much more commonly seen in association with movement disorders such as IPD, but stated that cervical dystonia is usually an isolated type of dystonia. It was Dr. I.K.'s opinion that Dr. C.B.'s opinion that "it is well known that agent orange can cause muscle disease, neurological disease as well as dystonia" represented a generalization of the known literature on the dystonias. According to Dr. I.K., dystonias are highly varied in manifestation and etiologies. Dr. I.K. explained that the type of dystonias described in the medical article "Dystonia and tremor following exposure to 2,3,7,8-tetrachlorodibenzo-p-dioxin" was "writer's cramp and/or other action dystonias of the hands." Dr. I.K. specifically pointed out that the article abstract stated that "No other types of dystonic involvement were recognized." Thus, according to Dr. I.K., the article did not support dioxin to cause cervical dystonia. As to the Medscape article cited by the March 2017 VA examiner, Dr. I.K. stated that limb dystonia is not uncommon in IPD, and could be more common in the parkinsonism entities, entities that resemble IPD but have more varied causes and neuropathologic findings than IPD. Dr. I.K. opined that some, if not all, of the cardinal features of IPD would be expected to be present or emerge soon after the manifestation of the dystonia, and further reported that it would be highly unlikely for dystonia and IPD to be related if after 18 years of dystonia, there were none of the typical findings of IPD. Dr. I.K. cited to a recent article regarding the neuropathological findings of specifically cervical dystonia showing no overlap with Parkinson disease in support of the conclusion. Ultimately, Dr. I.K. expressed agreement with the opinion provided by the March 2017 VA examiner, and the June 2017 addendum opinion, that an etiological opinion between cervical dystonia and Agent Orange cannot be provided without resorting to speculation. First considering the Veteran's assertion that cervical dystonia is related to Parkinson's disease and he is therefore entitled to presumptive service connection, Parkinson's disease is indeed listed as a disease for which presumptive service connection is possible. See 38 C.F.R. § 3.309(e). However, as demonstrated by opinion of the March 2017 VA examiner and the expert medical opinion provided by Dr. I.K., while there is some potential correlation between Parkinson's disease and cervical dystonia, the Veteran has not demonstrated any symptoms or features of Parkinson's disease at any point during the appeal period. Nor is there any other medical evidence linking the Veteran's cervical dystonia to a diagnosis of Parkinson's disease. As such, the Veteran is not entitled to presumptive service connection based on this theory. The Board has considered the opinions of the Veteran, his spouse, and his daughter and notes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011). However, none have been shown to possess the training, credentials, or other expertise to render an opinion that is of comparable probative value to that of a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Turning next to direct service connection, the Board acknowledges that Dr. C.B.'s November 2016 assessment indicated that the Veteran's cervical dystonia was secondary to in-service herbicide exposure. However, the medical article provided in support of the opinion does not confirm the doctor's assertion. Instead, as noted by Dr. I.Z., the article related to dystonic writer's cramp or other action dystonias of the hands to herbicide agent exposure and specifically noted "[n]o other types of dystonic involvement were recognized." Further, Dr. C.B.'s assertion that "it is well known that agent orange can cause muscle disease, neurological disease as well as dystonia" was specifically refuted by Dr. I.K. As such, the Board affords Dr. C.B.'s opinion limited probative weight. The Board instead finds the March 2017 VA examination and the January 2018 expert opinion provided by Dr. I.K., taken as a whole, to be adequate and reliable and affords them great probative weight. The Board finds that these opinions adequately explain why the Veteran's cervical dystonia was not caused by his active duty service, including his presumed in-service exposure to herbicide agents. As the preponderance of the evidence does not show that cervical dystonia was incurred in service or that a medical nexus exists between the presently diagnosed cervical dystonia and service, service connection cannot be granted on a direct basis. In sum, upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for cervical dystonia and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. ORDER Entitlement to service connection for cervical dystonia is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs