Citation Nr: 20043772 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 16-44 881 DATE: June 29, 2020 ORDER Service connection for osteoarthritis, to include muscle spasm, to include as due to exposure to herbicide agents, is denied. Service connection for a left shoulder disability, to include as due to exposure to herbicide agents, is denied. Service connection for a right shoulder disability, to include as due to exposure to herbicide agents, is denied. Service connection for a left hip disability, to include as due to exposure to herbicide agents, is denied. Service connection for a right hip disability, to include as due to exposure to herbicide agents, is denied. Service connection for a left knee disability, to include as due to exposure to herbicide agents, is denied. Service connection for a right knee disability, to include as due to exposure to herbicide agents, is denied. Service connection for a left hand disability, to include as due to exposure to herbicide agents, is denied. Service connection for a right hand disability, to include as due to exposure to herbicide agents, is denied. Service connection for a sleep disorder, to include as due to joint pain, is denied. REMANDED Entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. The Veteran served in Vietnam and is therefore presumed to have been exposed to herbicide agents, to include Agent Orange. 2. None of the competent and probative evidence indicates that the Veteran has osteoarthritis with muscle spasm that may be associated with service. 3. None of the competent and probative evidence indicates that the Veteran has a left shoulder disability that may be associated with service. 4. None of the competent and probative evidence indicates that the Veteran has a right shoulder disability that may be associated with service. 5. None of the competent and probative evidence indicates that the Veteran has a left hip disability that may be associated with service. 6. None of the competent and probative evidence indicates that the Veteran has a right hip disability that may be associated with service. 7. None of the competent and probative evidence indicates that the Veteran has a left knee disability that may be associated with service. 8. None of the competent and probative evidence indicates that the Veteran has a right knee disability that may be associated with service. 9. None of the competent and probative evidence indicates that the Veteran has a left hand disability that may be associated with service. 10. None of the competent and probative evidence indicates that the Veteran has a right hand disability that may be associated with service. 11. None of the competent and probative evidence indicates that the Veteran has a sleep disorder that may be associated with service or service-connected joint pain. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for osteoarthritis, to include muscle spasm, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an award of service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for an award of service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for an award of service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for an award of service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for an award of service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for an award of service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 8. The criteria for an award of service connection for a left hand disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 9. The criteria for an award of service connection for a right hand disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 10. The criteria for an award of service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 1970 to December 1971, to include service in Vietnam from June to December 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania. In July 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In May 2020, the Veteran, through his representative, waived agency of original jurisdiction review of VA-generated evidence that had been added to the record since the claims at issue were last adjudicated. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The term “disability” as used for VA purposes contemplates functional impairment resulting in loss of earning capacity. See 38 C.F.R. § 4.1; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). A Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure. 38 C.F.R. § 3.309(e). Arthritis is not among those diseases. If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases—including arthritis—to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 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) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A layperson is generally incapable of opining on matters requiring medical knowledge. However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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 (1990). 1. Entitlement to service connection for osteoarthritis, to include muscle spasm. 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for a right shoulder disability. 4. Entitlement to service connection for a left hip disability. 5. Entitlement to service connection for a right hip disability. 6. Entitlement to service connection for a left knee disability. 7. Entitlement to service connection for a right knee disability. 8. Entitlement to service connection for a left hand disability. 9. Entitlement to service connection for a right hand disability. The Veteran seeks to establish service connection for disorders of the shoulders, hips, knees, hands, and generalized osteoarthritis, which he contends are related to service, including in-service exposure to herbicide agents. See, e.g., July 2019 hearing transcript. There is no dispute that the Veteran has current disabilities of his shoulders, hands, hips, and knees. The record reflects current diagnoses of generalized osteoarthritis (see July 2019 VA treatment record), degenerative joint disease of the shoulders and hands (see March 2017 VA treatment record), arthritis of the hips (see May 2015 VA treatment record), and degenerative/arthritic changes in the knees (see March 2016 VA treatment record). However, none of the competent and probative evidence indicates that any of these disabilities may be associated with service. Initially, the Board notes that the Veteran’s service records show that he had service in the Republic of Vietnam. Thus, he is presumed to have been exposed to herbicide agents, such as Agent Orange. However, as noted above, arthritis is not a disease subject to presumptive service connection on the basis of such exposure. 38 C.F.R. § 3.309. At his hearing, the Veteran testified that the only musculoskeletal issue he had in service was hand pain. He specifically testified that all of his other joint problems began later in life, many years after service. See July 2019 hearing transcript. The Veteran’s service treatment records are devoid of any recorded complaints relative to his hips, knees, shoulders, hands, or general osteoarthritis. When he was examined for service separation in December 1971, his spine and upper and lower extremities were all noted to be normal; as was his neurological system. He reported at that time that his condition was “good.” In addition, there is no medical evidence linking a current disability of the shoulders, hips, knees, hands, or generalized osteoarthritis to service, and no evidence of arthritis of the joints becoming manifest to a degree of 10 percent or more within one year of service. Further, to the extent that the Veteran is claiming continuity of symptoms relative to his hands since service, such an assertion is inconsistent with the report of his service separation examination, which shows that his hands were found to be normal at that time and that he reported his condition as “good.” While the Veteran believes that his disabilities are related to service, he is not competent to provide a nexus opinion in this case. As a lay person, he is not shown to have the requisite medical knowledge, training, or experience to render a competent opinion regarding the matter of whether his current conditions can be attributed to service. Jandreau, 492 F.3d at 1377. Neither he nor his representative have submitted any favorable medical nexus evidence in support of his claims. The Board acknowledges that the Veteran has not been afforded VA examinations with respect to these claims. However, in the absence of any competent and credible evidence indicating that the disabilities in question may be associated with service, no examination or medical opinion is necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The Board is grateful for the Veteran’s service. Unfortunately, however, the preponderance of the evidence is against his claims. The benefit of the doubt rule is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); Gilbert, supra. 10. Entitlement to service connection for a sleep disorder. The Veteran also seeks to establish service connection for a sleep disorder, to include as due to joint pain. See September 2016 VA Form 9; July 2019 hearing transcript. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order for service connection to be established, there first needs to be competent evidence of a current disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As noted previously, the term “disability” as used for VA purposes contemplates functional impairment resulting in loss of earning capacity. See 38 C.F.R. § 4.1; Saunders, supra. Following review of the evidence in this case and the applicable law and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for a sleep disorder. As an initial matter, the Board notes that it is not entirely clear whether the Veteran has a current, cognizable sleep disorder. Although the record reflects that he has complained of sleep problems, none of the medical records make reference to a diagnosed sleep disorder, including sleep apnea. See, e.g., December 2018 VA treatment record. Even assuming for purposes of argument that the Veteran has a current sleep disorder, none of the competent and probative evidence indicates that any such disability may be associated with service. His service treatment records are completely devoid of any mention of sleep problems, to include at the time of his separation from service. There is no evidence of complaints specifically related to sleep until December 2018. While the Veteran may believe that he suffers from a sleep disorder that is related to service, he is not competent to diagnose such a condition or otherwise provide a nexus opinion in this case. As a lay person, he is not shown to have the requisite medical knowledge, training, or experience to render a competent opinion regarding the matter of whether his current condition can be attributed to service. Jandreau, 492 F.3d at 1377. Also, neither the Veteran nor his representative have submitted any favorable nexus evidence in support of his claim. To the extent the Veteran seeks service connection for a sleep disorder as secondary to joint pain, the Board notes only that he is not currently service-connected for any disability manifested by joint pain; as a result, there is no basis for an award of service connection on a secondary basis. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to this claim. However, as noted previously, in the absence of any competent and probative evidence indicating that the claimed disability may be associated with service, an examination is not required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The preponderance of the evidence is against the claim. The benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, supra. REASONS FOR REMAND Entitlement to service connection for headaches is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s remaining claim and to afford him every possible consideration. VA must provide a VA medical examination if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period, provided the claimant has the required service or triggering event to qualify for that presumption; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Here, the record reflects that the Veteran has a current diagnosis of headaches. See February 2015 and June 2019 VA treatment records. Service treatment records note a complaint of headache. See January 1971 service treatment record. In addition, he testified at his hearing that he began experiencing headaches immediately after separation from service. See July 2019 hearing testimony. The Veteran has not been afforded a VA examination in connection with his claim for service connection for headaches. Based on the foregoing, the Board finds that remand is required in order to obtain a VA examination and opinion. This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed, arrange to have the Veteran scheduled for a VA headaches examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s headaches had their onset in, or are otherwise attributable to, his period of active service, to include his presumed in-service exposure to herbicide agents. The examiner should also offer an opinion with respect to whether it is at least as likely as not that the current headaches had their onset during the one-year period following the Veteran’s discharge from service. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be re-adjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a   supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, Associate 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.