Citation Nr: 20021189 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 13-28 824 DATE: March 24, 2020 ORDER Entitlement to service connection for erectile dysfunction is granted. Entitlement to service connection for arthritis of the hands and back is denied. FINDINGS OF FACT 1. Erectile dysfunction is proximately due to the service-connected prostate cancer. 2. Arthritis of the hands and back is not related to service, to include exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2019). 2. The criteria for entitlement to service connection for arthritis of the hands and back have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from October 1966 to September 1969. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2019 Order of the United States Court of Appeals for Veterans’ Claims (Veterans Court). The appeal originated from a September 2012 rating decision of the RO in Houston, Texas. In April 2014, the Veteran presented testimony at a hearing before RO personnel. In March 2015, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge, sitting at the RO. At the Board hearing, the Veteran was informed of the basis for the RO’s denial of these claims and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103. Transcripts of both hearings are associated with the claims file. In an April 2016 decision, the Board denied these issues. The Veteran appealed the Board’s decision to the Veterans Court. In a January 2017 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board’s April 2016 decision and remanded these issues to the Board for additional development consistent with the Joint Motion. In a June 2017 decision, the Board again denied these issues. The Veteran appealed that decision to the Veterans Court. In a June 2019 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board’s decision in part and remanded these issues to the Board for additional development consistent with the Joint Motion. In June 2017, the Board also denied claims of entitlement to service connection for diabetes mellitus, prostate cancer, and hypertension. The Board’s decision to deny those claims was not disturbed. The parties simultaneously filed a Joint Motion to Terminate the Appeal regarding those matters. Service Connection—Law and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. This presumption applies to veterans who served 90 days or more during a period of war or after December 31, 1946. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The presumptive chronic diseases include arthritis. Arthritis is primarily rated on the basis of limitation of motion. Therefore, the rating provisions addressing limitation of motion of specific joints must be considered in determining whether arthritis is manifest to a degree of 10 percent or more. Alternatively, in the case of degenerative arthritis (hypertrophic or osteo-arthritis) or arthritis due to trauma, there must be painful motion accompanied by X-ray evidence of arthritis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. In order for lumbar spine arthritis to have become manifest to a degree of 10 percent, there must be evidence to substantiate that (1) forward flexion of the thoracolumbar spine is limited to 85 degrees, or (2) that combined range of motion of the thoracolumbar spine is limited to 235 degrees, or (3) there must be a diagnosis “established by X-ray findings” and “satisfactory evidence of painful motion.” See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242 (2019). In order for arthritis of the hands to have become manifest to a degree of 10 percent, there must be evidence to substantiate that (1) there is such limited motion of a single digit or group of digits so as to warrant a compensable rating under Diagnostic Codes 5216-5230, or (2) there must be a diagnosis “established by X-ray findings” and “satisfactory evidence of painful motion.” See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242 (2019). Where one of the enumerated chronic diseases is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating “(1) that one of the enumerated diseases was noted during service or within the presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA has established a presumption of exposure to herbicide agents applicable to veterans who served in the Republic of Vietnam during the Vietnam War, and a presumption of service connection applicable to veterans who are either presumed to have been exposed to herbicide agents, or who are shown to have been actually exposed to herbicide agents during service. 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. 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 or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). A disease covered by 38 U.S.C. § 1116 becoming manifest as specified in that section in a veteran who, during active military, naval, or air service, served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be considered to have been incurred in or aggravated by such service, notwithstanding that there is no record of evidence of such disease during the period of such service. 38 U.S.C. § 1116(a). A veteran who, during active military, naval, or air service, served offshore of 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(b); 38 U.S.C. § 1116A (those who served in the 12-nautical-mile territorial sea of the “Republic of Vietnam” are entitled to the presumption of herbicide exposure). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 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), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The herbicide-presumptive diseases shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr, 21 Vet. App. at 308-09. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2019). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for erectile dysfunction. The Veteran is seeking service connection for erectile dysfunction as secondary to diabetes mellitus or prostate cancer. At the time of the June 2017 Board decision, service connection was not in effect for diabetes mellitus or prostate cancer. Since that decision, service connection has been granted for diabetes mellitus and prostate cancer, based on the amendment to 38 U.S.C. § 1116(b); 38 U.S.C. § 1116A, establishing that those who served in the 12-nautical-mile territorial sea of the Republic of Vietnam are entitled to the presumption of herbicide exposure. The Veteran has a diagnosis of erectile dysfunction that has been linked by competent evidence to his service-connected prostate cancer (Record 01/11/2016 at 8). Accordingly, the Board finds that service connection for erectile dysfunction is warranted. As this represents the full benefit sought on appeal, there is no prejudice resulting from any deficiency in the duties to notify or assist, and there is full compliance with the stipulations in the Joint Motion. Entitlement to service connection for arthritis of the hands and back. The parties to the Joint Motion agreed that vacatur and remand were warranted for the Veteran’s claim of entitlement to service connection for arthritis of the hands and back, claimed as due to exposure to herbicide agents, because the Board erred by failing to provide adequate reasons or bases for its decision. While the parties agreed that the Veteran has consistently stated that his arthritis is related to his herbicide exposure in service, notwithstanding that arthritis is not an herbicide-presumptive disease, the parties agreed that the Board erred in not discussing the Veteran’s statements that his arthritis is related to herbicide exposure in service on a direct basis. Of course, at the time of the Board’s prior decision, VA law did not endorse exposure to herbicide agents for veterans with duty offshore the Republic of Vietnam. The Board found that the Veteran was not actually or presumptively exposed to herbicide agents. Therefore, a direct service connection theory, based on presumed herbicide exposure, was not suggested. Service treatment records reveal no complaints, findings, or diagnoses pertinent to arthritis. On January 1968, the Veteran was treated for sore muscles in the lower back. He was prescribed muscle relaxers and pain relievers and told to return that evening. At that time, he shows some improvement (Record 11/15/2010 at 11). The Veteran was treated for a minor cut on the index finger on November 13, 1967 (Record 11/15/2010 at 11). On May 15, 1967, the Veteran was treated for a swollen right index finger after hitting a volleyball (Record 11/15/2010 at 11). The service separation examination on September 2, 1969, reveals normal clinical findings for the upper extremities and spine (Record 11/15/2010 at 26). This is probative and persuasive evidence that the Veteran did not have arthritis in the hands or back when he left service. In August 2012, the Veteran was found to have arthritis in the bilateral hands (Record 08/24/2012). The symptoms were described as beginning a year prior, i.e., around August 2011. X-rays revealed severe arthritis changes involving the second through fourth fingers, particularly the distal interphalangeal joints. The Veteran has not contended that the claimed arthritis began in service. He has consistently argued that it is related to herbicide exposure in service. He argued in the April 2014 RO hearing that his arthritis was due to herbicide exposure. He was asked by the decision review officer whether he was contending that his arthritis was due to herbicide exposure and his response was “Yes.” He was asked whether he was contending that he had arthritis while on active duty and his response was “No.” While he has argued entitlement to service connection for arthritis on a direct basis, this was still on the basis of herbicide exposure, contending that he was actually exposed to herbicides. The Veteran acknowledged at the Board hearing that arthritis was not on the herbicide-presumptive list, but he wanted it on the record in case 5 year from now it gets added to the list (Record 03/23/2015 at 19). After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for arthritis of the hands and back have not been met. While the Veteran clearly has arthritis of the bilateral hands, he has not been diagnosed with arthritis of the thoracolumbar spine or lumbosacral spine. He has been noted to have low back pain; however, he is seeking service connection for arthritis of the hands and back. There does not appear to be any arthritis of the back. Nevertheless, the Board has considered his claim generally as a low back claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). There is no medical opinion of record that purports to relate arthritis of bilateral hands or a low back disorder of any description to service, to including exposure to herbicide agents therein. The Board finds that there is not even sufficient suggestion of a nexus to order further development on this theory. The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be “medically competent” evidence of a current disability, “medically competent” evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, the only evidence that the Veteran’s claimed arthritis of the bilateral hands, or low back disorder, are related to his military service is his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence. Accordingly, the Board finds that referral for a VA medical examination is not necessary to decide the claim. In sum, the Board finds that the claimed arthritis of the hands and back, or other low back disorder, are not related to service. In light of these findings of fact, the Board concludes that service connection for the claimed arthritis of the hands and back, or other low back disorder, is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.