Citation Nr: 20040909 Decision Date: 06/16/20 Archive Date: 06/16/20 DOCKET NO. 15-11 681 DATE: June 16, 2020 ORDER 1. Entitlement to service connection for a left-hand disability is denied. 2. Entitlement to service connection for a right-hand disability is denied. 3. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a left-hand disability at any time during, or approximate to, the pendency of the claim that causes functional impairment of earning capacity. 2. The preponderance of the evidence of record is against finding that the Veteran has had a right-hand disability at any time during, or approximate to, the pendency of the claim that causes functional impairment of earning capacity. 3. The Veteran’s hypertension did not have its onset in service, was not manifested within one year following service discharge, was not caused or aggravated by a service-connected disability, and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a left-hand disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for a right-hand disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria to establish service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 11,37, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1995 to November 2000. The Veteran appeals a March 2012 rating decision by the Agency of Original Jurisdiction (AOJ) denying service connection for a left-hand disability, a right-hand disability, and hypertension. In January 2019, the Board remanded the claim of entitlement to service-connection for hypertension to the AOJ for further action consistent with the Board’s remand directives. Also, in the January 2019 decision, the Board denied the claims of entitlement to service-connection for left-hand and right-hand disabilities. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In January 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by representatives for both parties and remanded it to the Board for further proceedings consistent with the JMPR. All three claims have returned to the Board for further appellate proceedings. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) 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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as hypertension, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Importantly here, in the absence of proof of a present disability, to include symptoms that cause functional impairment of earning capacity, there can be no valid claim. Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). However, the requirement for service connection that a current disability be present is satisfied when a veteran has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 322-23 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). 1. Entitlement to service connection for a left-hand disability is denied. The Veteran contends that he has a left-hand disability as a result of a frost bite injury in service. See April 2012 notice of disagreement. He asserts that his left-hand disability is manifested by pain, swelling, and stiffness. Id.; see also August 2015 VA treatment records. He contends that he has arthritis of the left hand. Id. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a left-hand disability. Specifically, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a left-hand disability, to include symptoms thereof, that cause functional impairment of earning capacity. The reasons follow. The Board finds that the Veteran has not had a current disability for the purposes of the contended left-hand disability at any time during the pendency of the claim or recent to the filing of the claim that causes functional impairment of earning capacity. Thus, the initial requirement for service connection for a left-hand disability is not met. Degmetich, 104 F.3d at 1332; McClain, 21 Vet. App.at 322-23. For example, the Veteran's current medical records note a single visit by the Veteran in November 2010 with complaints of occasional left-hand pain and stiffness that had worsened over the preceding two years. See August 2015 VA treatment records. He explained to the physician that he had frost bite in service. Id. The physician completed a review of systems and did not document functional impairment. Id. The physician’s assessment was “health maintenance” and “previous frost bite.” Id. The physician ordered a chest x-ray and routine labs, but no follow-up was ordered related to the Veteran’s left hand. Id. Importantly, neither the physician or the Veteran noted functional impairment due to the left-hand pain and stiffness, which tends to show that any pain or swelling were not conducive of a functional impairment. See id. Indeed, at no point, to include the period after the JMPR, has the Veteran asserted functional impairment of earning capacity related to his left hand. As the record is silent for any functional impact asserted or otherwise noted, additional development with regard to the asserted left-hand disability is not warranted. Absent competent evidence of a current disability or symptoms in the left hand that cause functional impairment of earning capacity, service connection for a left-hand disability is denied. Moreover, the Veteran’s service treatment records do not document a left-hand disability or symptoms indicative thereof. Even assuming that the Veteran sustained a cold injury to his left hand, the separation examination showed that clinical evaluation of the upper extremities was normal. Additionally, while documenting other medical symptoms in the Report of Medical History that he completed in July 2000, he did not document symptoms involving is left hand. The Board notes that VA has not provided the Veteran with an examination or opinion in connection with the claim for service connection for a left-hand disability. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the evidence does not show competent evidence of a current disability or persistent or recurrent symptoms of a disability. For a VA examination to be warranted, all the McLendon criteria have to be met, and at least one element is not met. Therefore, entitlement to a VA examination is not warranted for this service-connection claim. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claim for service connection for a left-hand disability is denied. 2. Entitlement to service connection for a right-hand disability is denied. The Veteran contends that he has a right-hand disability as a result of a frost bite injury in service. See April 2012 notice of disagreement. He asserts that his right-hand disability is manifested by pain, swelling, and stiffness. Id.; see also August 2015 VA treatment records. He contends that he has arthritis of the right hand. Id. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a right-hand disability. Specifically, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a right-hand disability, to include symptoms thereof, that cause functional impairment of earning capacity. The reasons follow. The Board finds that the Veteran has not had a current disability for the purposes of the contended right-hand disability at any time during the pendency of the claim or recent to the filing of the claim that causes functional impairment of earning capacity. Thus, the initial requirement for service connection for a right-hand disability is not met. Degmetich, 104 F.3d at 1332; McClain, 21 Vet. App.at 322-23. For example, the Veteran’s medical records do not document a current right-hand disability. Similarly, the medical records do not document, nor has the Veteran asserted, symptoms indicative of a current right-hand disability during the period on appeal, to include symptoms that cause functional impairment of earning capacity. Absent competent evidence of a current disability or symptoms in the right hand that cause functional impairment of earning capacity, service connection for right hand disability is denied. Indeed, at no point, to include the period after the JMPR, has the Veteran asserted any functional impairment related to his left hand. As the record is silent for any functional impact asserted or otherwise noted, additional development with regard to the asserted left-hand disability is not warranted. Absent competent evidence of a current disability or symptoms in the left lower extremity that cause functional impairment of earning capacity, service connection for a left-hand disability is denied. Moreover, the Veteran’s service treatment records do not document a right-hand disability or symptoms indicative thereof. Even assuming that the Veteran sustained a cold injury to his right hand, the separation examination showed that clinical evaluation of the upper extremities was normal. Additionally, while documenting other medical symptoms in the Report of Medical History that he completed in July 2000, he did not document symptoms involving is left hand. The Board notes that VA has not provided the Veteran with an examination or opinion in connection with the claim for service connection for a right-hand disability. The four criteria were laid out above. In this case, the evidence does not show competent evidence of a current disability or persistent or recurrent symptoms of a disability. For a VA examination to be warranted, all the McLendon criteria have to be met, and at least one element is not met. Therefore, entitlement to a VA examination is not warranted for this service-connection claim. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claim for service connection for a right-hand disability is denied. 3. Entitlement to service connection for hypertension is denied. The Veteran contends that his hypertension was caused by exposure to Agent Orange in service, secondary to his PTSD, secondary to his sleep apnea, or otherwise had its onset in service and has continued since. See February 2011 VA Form 21-526, April 2016 notice of disagreement, August 2015 VA Form 21-526EZ, December 2016 selected STRs submitted by Veteran, December 2019 correspondence, and May 2020 appellant’s brief. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for hypertension. Specifically, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s hypertension had its onset in service, manifested within one year following service discharge, was caused or aggravated by a service-connected disability, or is otherwise related to service. The reasons follow. As to evidence of a current disability, a November 2019 VA examination report shows that the Veteran was diagnosed with hypertension. Therefore, the Veteran meets the first element of a service-connection claim on a direct and secondary basis. As to direct service connection, the Veteran contends that his disability had its onset in service and continued since or, alternatively, is caused by his asserted exposure to agent orange. First, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s hypertension had its onset in service or within one year of separation. For example, the Veteran was not diagnosed with hypertension during service. In the July 2000 Report of Medical Examination performed in connection with his service discharge, it shows that clinical evaluations of the heart and vascular system were both normal. The Veteran’s blood pressure at that time was 110/70. In the July 2000 Report of Medical History that the Veteran completed at service discharge, he denied a history of high or low blood pressure. In a June 2011 VA treatment record, the examiner documented that the Veteran had a negative medical history of hypertension. This shows that more than 10 years after service discharge, and the Veteran did not have a diagnosis of hypertension. Hypertension was diagnosed in August 2011. This is evidence against hypertension having its onset in service or within one year following service discharge. Additionally, the Veteran was afforded a VA examination in November 2019. As to the contention regarding chronicity and onset, the examiner opined that no evidence of chronicity of care exists in the record. See November 2019 VA examination report. The examiner noted that the Veteran’s condition in service was “acute only,” “[did] not meet the guidelines for a hypertension diagnosis,” and that his blood pressure was normal at the time of discharge. Id. Further, the examiner noted that the Veteran did not present with elevated blood pressure readings until 2014, which further shows that his hypertension did not have its onset in service or within a year after separation. Id. Moreover, the examiner’s detailed review of the Veteran’s treatment records revealed that the Veteran had obesity and diabetes as far back as 2010. Id. The examiner explained that obesity, diabetes, and the Veteran’s age at the time of onset substantially increased the Veteran’s risk of hypertension. Id. Finally, the examiner opined that the Veteran’s hypertension is likely due to the Veteran’s obesity and diabetes, but not service. Id. The examiner’s opinion and analysis are based on a thorough review of the Veteran’s service record, treatment record, medical literature, and expertise. See id. Thus, the Board finds the examiner’s opinion highly probative. This is evidence against a nexus between the Veteran’s diagnosis of hypertension and service. While the Veteran is competent to report symptoms that he has experienced in service and since service, he is not competent to directly link any current disability to service, as medical expertise is required. In this regard, the question of causation 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. At the present time, there is no competent evidence upon which to weigh against the negative VA opinion. As to the contended exposure to Agent Orange, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s hypertension was caused by exposure to Agent Orange or an herbicide agent in service. The Board notes that Veteran does not qualify for a presumption of herbicide exposure. Additionally, the Veteran has not asserted any events or circumstances in which he may have been exposed to Agent Orange or any other herbicide agent. As noted above, the Veteran served in active duty between August 1995 and November 2000. See DD-214. To qualify for a presumption of herbicide exposure, the Veteran must have had service described in 38 C.F.R. § 3.307(a)(6). The Veteran’s service does not qualify for any listed presumptions for herbicide exposure. The Board is mindful that even if a veteran is not entitled to the presumption, service connection may be established with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). However, the Veteran has not asserted any events or circumstances for the Board to find exposure to Agent Orange or any herbicide agent on a facts-found basis. Therefore, the Board finds that the preponderance of the evidence is against a finding that the Veteran was exposed to Agent Orange, or any herbicide agent. Additionally, the Board must find that the preponderance of the evidence is against a finding that the Veteran’s hypertension was caused by the asserted exposure. The Board now turns to the Veteran’s secondary service connection contentions. First the Board finds that the preponderance of the evidence is against a finding that the Veteran’s hypertension was caused or aggravated by his asserted sleep apnea. The Veteran is not service connected for sleep apnea and, thus, this contention would not avail the Veteran to entitlement to service connection. See Wallin v. West, 11 Vet. App. 509, 512 (1988). Therefore, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s hypertension was caused or aggravated by an asserted, nonservice-connected sleep apnea. Next, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s hypertension was caused or aggravated by his service-connected PTSD. While the Veteran is service connected for PTSD, there is no competent evidence that establishes that his hypertension was caused or aggravated by PTSD. As noted above, the 2019 examiner opined that the Veteran’s hypertension is likely due to the Veteran’s obesity and diabetes. See November 2019 VA examination report. The examiner’s review of the medical record and claim’s file included review of the fact that the Veteran is service connected for PTSD. Id. Despite the Veteran’s diagnosis of PTSD, the examiner maintained that the Veteran’s hypertension is likely due to the Veteran’s obesity and diabetes; neither obesity nor diabetes is service connected. See id. The Board has found above that the examiner’s opinion highly probative. The Veteran has not provided evidence to establish that the service-connected PTSD has caused or aggravated his hypertension, and the Veteran’s allegation of a relationship between the two disabilities is not competent evidence, as medical expertise is required. The question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. Therefore, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s hypertension was caused or aggravated by a service-connected disability. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claim for service connection for hypertension on direct, presumptive, and secondary bases is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.