Citation Nr: 20004873 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 16-10 463 DATE: January 22, 2020 ORDER Service connection for a left shoulder disorder (claimed as muscle cramps) is denied. Service connection for a right arm disorder (also claimed as muscle cramps) is denied. REMANDED The claim of entitlement to service connection for a skin disorder (also claimed as lesions of hand and feet) is remanded. FINDINGS OF FACT 1. There is no evidence of a chronic left shoulder disorder in service and no competent medical evidence linking the Veteran’s current left shoulder strain with his period of service. 2. There is no evidence of a chronic right arm disorder in service and no competent medical evidence linking the Veteran’s current muscle strain of the right arm with his period of service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disorder are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right arm disorder are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1965 to June 1967, to include service in the Republic of Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal of January 2013 and May 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing in November 2019. A transcript of this proceeding has been associated with the claims file. Service Connection 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. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. The governing law provides that a “veteran who, during active military, naval, or air 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 during such service 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 U.S.C. § 1116(f). Furthermore, VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disabilities listed in 38 C.F.R. § 3.309(e). Notwithstanding the inapplicability of the Agent Orange presumptive service connection regulations, in this case the Board is obligated to fully consider the appellant’s claim on a direct service connection basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 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). 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). 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). 1. Service connection for a left shoulder disorder (claimed as muscle cramps) is denied. The Veteran contends that service connection is warranted for a left shoulder disorder. A review of the Veteran’s service treatment records shows that he was treated for muscle spasms of the left shoulder in September 1966 and October 1966, but his June 1967 separation examination shows normal upper extremities. Post-service VA treatment records include an August 2013 treatment record wherein the Veteran reported a history of bilateral shoulder/arm pain “for years,” since the late 1960s. The Veteran submitted an initial claim for service connection for muscle cramps in December 2010. In connection with his claim, he was afforded a VA shoulders examination in February 2013. This examination shows a diagnosis of left shoulder strain. Significantly, the examiner opined that the Veteran’s left shoulder strain is less likely than not incurred in or caused by his military service. As rationale for this opinion, the examiner noted the Veteran’s two episodes of spasm of the left shoulder while on active duty as well as the June 1967 separation examination showing a normal left shoulder. The examiner also noted that there was no documentation of interval history since the Veteran’s discharge from military service. Initially, the Board notes that left shoulder strain is not included as a chronic condition under either 38 C.F.R. § 3.303(e) (pertaining to herbicide exposure) or 38 C.F.R. § 3.309(a) (pertaining to continuity of symptomatology). As such, presumptive service connection either on the basis of the Veteran’s presumed herbicide exposure and/or on the basis of continuity of symptomatology is not warranted for this condition. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The claim is also denied on a direct basis. While the Veteran’s service treatment records show that he complained of muscle spasms of the left shoulder in September 1966 and October 1966, there are no continued complaints and the June 1967 separation examination shows normal upper extremities. Post-service treatment records are negative for chronic left shoulder complaints until the Veteran’s December 2010 claim. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Finally, there is no medical evidence in the record that links the Veteran’s current left shoulder strain to an incident of the Veteran’s active military service. Significantly, while the Veteran contends that his current left shoulder strain was incurred during his military service, the February 2013 VA examiner found that the Veteran’s left shoulder strain was not incurred during his military service as there was no medical evidence of chronicity following his September/October 1966 treatment for muscle spasms of the left shoulder. In his November 2013 notice of disagreement, the Veteran wrote that he sought treatment for left shoulder pain immediately after service but noted that such records were no longer available due to the lapse of time. Confusingly, the Veteran also wrote that he was unable to seek medical treatment for left shoulder pain following service as he was unable to take the time off from work. While the Veteran has alleged that his left shoulder strain was incurred during his military service, the Board finds that the question regarding the potential relationship between the Veteran’s left shoulder strain and any instance of his military service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). In this regard, the question of causation of left shoulder strain involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for a left shoulder disorder. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for a right arm disorder (also claimed as muscle cramps) is denied. The Veteran contends that service connection is warranted for a right arm disorder. A review of the Veteran’s service treatment records shows that he was treated for a muscle strain of the right scapula in May 1967, but his June 1967 separation examination shows normal upper extremities. Post-service VA treatment records include an August 2013 treatment record wherein the Veteran reported a history of bilateral shoulder/arm pain “for years,” since the late 1960s. The Veteran submitted an initial claim for service connection for muscle cramps in December 2010. In connection with his claim, he was afforded a VA muscle examination in February 2013. This examination shows a diagnosis of muscle strain of the right arm. Significantly, the examiner opined that the Veteran’s muscle strain of the right arm is less likely than not incurred in or caused by his military service. As rationale for this opinion, the examiner noted that the Veteran did have episodes of recurrent muscle spasm, but there were long periods of lack of documentation since discharge from service. In addition, there were some mild nerve changes as noted on nerve conduction studies and rather severe spondylosis of the cervical spine was noted which, according to the examiner, “may be more of a contributing factor to the pain he describes rather than true muscular pain.” Initially, the Board notes that muscle strain is not included as a chronic condition under either 38 C.F.R. § 3.303(e) (pertaining to herbicide exposure) or 38 C.F.R. § 3.309(a) (pertaining to continuity of symptomatology). As such, presumptive service connection either on the basis of the Veteran’s presumed herbicide exposure and/or on the basis of continuity of symptomatology is not warranted for this condition. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The claim is also denied on a direct basis. While the Veteran’s service treatment records show that he was treated for a muscle strain of the right scapula in May 1967, there are no continued complaints and the June 1967 separation examination shows normal upper extremities. Post-service treatment records are negative for chronic right arm complaints until the Veteran’s December 2010 claim. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson, 230 F.3rd at 1333. Finally, there is no medical evidence in the record that links the Veteran’s current right muscle strain to an incident of the Veteran’s active military service. Significantly, while the Veteran contends that his current right muscle strain was incurred during his military service, the February 2013 VA examiner found that the Veteran’s right muscle strain was not incurred during his military service as there was no medical evidence of chronicity following his May 1967 treatment for a muscle strain of the right scapula. In his November 2013 notice of disagreement, the Veteran wrote that he sought treatment for right arm pain immediately after service but noted that such records were no longer available due to the lapse of time. Confusingly, the Veteran also wrote that he did not seek medical treatment for right arm pain following service as he was unable to take the time off from work. While the Veteran has alleged that his right muscle strain was incurred during his military service, the Board finds that the question regarding the potential relationship between the Veteran’s right muscle strain and any instance of his military service to be complex in nature. Woehlaert, 21 Vet. App. at 462. Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones, 12 Vet. App. at 465. In this regard, the question of causation of right muscle strain involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for a right arm disorder. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 3. The claim of entitlement to service connection for a skin disorder, claimed as due to herbicide exposure, is remanded. The Veteran contends that service connection is warranted for a skin disorder, as due to his presumed in-service herbicide exposure. Service treatment records are negative for an indication of a skin disorder. Significantly, the Veteran’s June 1967 separation examination shows normal skin. The earliest indication of skin problems is a November 2010 VA treatment record showing a history of recurring skin rash between the Veteran’s fingers and toes since 1970. A February 2011 VA treatment record shows diagnoses of maculopapular lesion of the right digital cleft and dermatitis. Significantly, pursuant to 38 C.F.R. § 3.309(e), presumptive service connection is available for chloracne, other acneform disease consistent with chloracne, and porphyria cutanea tarda. While there is no evidence of record that the Veteran was ever diagnosed with any of these skin disorders, the such regulations suggest that at least some skin disorders may be linked to herbicide exposure. Unfortunately, a medical opinion has not been obtained for the purpose of determining whether any diagnosed skin disorder is related to the Veteran’s military service. The Veteran’s statements concerning a possible relationship between a skin disorder and his presumed in-service exposure to herbicides are sufficient to trigger the duty on the part of VA to provide a medical opinion as to this claim. Also, the Board notes that there are likely outstanding VA treatment records as the most recent VA medical records in the claims file are dated in July 2019. Therefore, all outstanding VA treatment records should be obtained on remand. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated since July 2019. 2. Schedule the Veteran for a VA skin examination to determine the nature and etiology of his claimed skin disorder(s). The claims file should be made available to and reviewed by the examiner. First, the examiner should note all diagnoses pertaining to the claimed skin conditions present during the course of the appeal. Then, the VA examiner should offer his/her opinion with supporting rationale as to whether is it at least as likely as not (i.e. probability of 50 percent or greater) that a skin disorder was either incurred in, or is otherwise related to, the Veteran’s active duty service, to include the Veteran’s presumed in-service herbicide exposure. The examiner shoulder note the November 2010 VA treatment record showing a history of recurring skin rash between the Veteran’s fingers and toes since 1970 as well as the February 2011 VA treatment record showing diagnoses of maculopapular lesion of the right digital cleft and dermatitis. The examiner should also note that VA’s own regulations suggest that skin disorders may be linked to herbicide exposure as, pursuant to 38 C.F.R. § 3.309(e), presumptive service connection is available for chloracne, other acneform disease consistent with chloracne, and porphyria cutanea tarda. Significantly, the examiner is on notice that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The mere fact that a presumption has not been established for any particular disorder at issue is not dispositive of the issue of nexus. Consideration must still be given to the exposure. The examiner is asked to provide the underlying reasons for all opinions expressed and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.