Citation Nr: 21061877 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 16-21 874 DATE: October 5, 2021 ORDER Service connection for a bilateral hip disorder is denied. Service connection for a right knee disorder is denied. Service connection for tremors of the bilateral upper extremities is denied. Service connection for neuropathy of the bilateral lower extremities is denied. Service connection for chronic joint pain is denied. REMANDED Entitlement to service connection for a respiratory disorder, to include as a result of asbestos exposure, is remanded. FINDING OF FACT 1. The Veteran's bilateral hip disorder, right knee disorder, tremors of the bilateral upper extremities, neuropathy of the bilateral lower extremities, and chronic joint pain were not shown in service or for many years thereafter and are not otherwise etiologically related to active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hip disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for tremors of the bilateral upper extremities have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for neuropathy of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 5. The criteria for service connection for chronic joint pain have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1963 to August 1967. Initially, the Board observes that the Veteran requested a live videoconference hearing before a Veterans Law Judge in his May 2016 substantive appeal. A hearing was scheduled for July 10, 2019. The April 2019 correspondence advising the Veteran of the date and time of the hearing also advised the Veteran that if he failed to appear at the hearing without good cause, a new hearing date would not be provided. On July 9, 2019, VA received e-mail correspondence from the Veteran indicating that he was notified the week before the hearing that he was scheduled to appeal for a live video conference hearing at a hearing location that was 230 miles from his residence and informing VA that he would not be able to attend the hearing because he is not able to drive for any length of time. Additionally, on the day of his hearing, VA received correspondence from his representative requesting a new hearing. Although the Veteran did not appear for the July 10, 2019 hearing, VA found good cause had been shown and scheduled the Veteran for a new live videoconference hearing on September 23, 2019. VA notified the Veteran of his rescheduled hearing in a letter dated August 7, 2019, which was not returned as undeliverable. VA also notified his representative of the rescheduled hearing date. Thus, the Board is satisfied that ample notice of the rescheduled hearing was provided to the Veteran. Despite this notice, the failed to appear for his live videoconference hearing as scheduled. The Veteran did not notify VA that he would not be able to attend the rescheduled hearing. Moreover, in June 2021, his representative submitted an informal hearing presentation (IHP) and contend that a live videoconference hearing should be rescheduled for a second time as a result of the Veteran's failure to appear at the September 23, 2019, hearing. If an appellant fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. No further request for a hearing will be granted in the same appeal unless such failure to appear was with good cause and the cause for the failure to appear arose under such circumstances that a timely request for postponement could not have been submitted prior to the scheduled hearing date. In this case, the Veteran has already been afforded two opportunities to testify, and has failed to appear for both. Both the Veteran and his representative were timely notified of the September 23, 2019 rescheduled hearing, with more than a two-months' notice. Significantly, the Veteran did not request a rescheduled hearing after receiving notice of the September 23, 2019 (rescheduled) hearing and his representative did not request that the September 23, 2019 hearing be rescheduled in the June 2021 IHP. Thus, the Board concludes that good cause for missing the September 23, 2019 hearing has not been shown, and his hearing request is deemed withdrawn. 38 C.F.R. § 20.704. Next, the Board notes that in the June 2021 IHP, the Veteran's representative argued that VA examinations are warranted for all claims because the Veteran has a current diagnosis of the claimed conditions and provided ample evidence of the possibility of exposure to asbestos, fiberglass, and other chemicals during his active duty service. Although the Board agrees that the Veteran should be afforded a VA examination considering the nature and etiology of his respiratory disorder, the Board finds that VA examinations considering the nature and etiology of his bilateral hip disorder, right knee disorder, tremors of the bilateral upper extremities, neuropathy of the bilateral lower extremities, and chronic joint pain are not warranted. Specifically, given the absence of in-service evidence of chronic manifestations of these disorders, his normal separation examination, the absence of any evidence linking exposure to asbestos, fiberglass, and other chemicals to hip disorders, knee disorder, tremors, and neuropathy, and the absence of evidence of these disorders until more than 21 years, at a minimum, after his separation from service, the Board finds that VA examinations to consider the nature and etiologies of these disorders is not warranted. 38 C.F.R. § 4.2; cf. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Indeed, the Board finds that the available records and medical evidence is sufficient to make an adequate determination as to these claims. Service Connection 1. Entitlement to service connection for a bilateral hip disorder 2. Entitlement to service connection for a right knee disorder 3. Entitlement to service connection for tremors of the bilateral upper extremities 4. Entitlement to service connection for neuropathy of the bilateral lower extremities 5. Entitlement to service connection for chronic joint pain The Veteran contends that service connection is warranted for a bilateral hip disorder, a right knee disorder, tremors of the bilateral upper extremities, neuropathy of the bilateral lower extremities, and chronic joint pain. Specifically he asserts that his current bilateral hip disorder, right knee disorder, tremors of the bilateral upper extremities, neuropathy of the bilateral lower extremities, and chronic joint pain are related to his active duty service because he came into contact with "chemicals," including fiberglass and asbestos during active duty service without wearing proper protection, and that this exposure caused his disorders. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. Id. Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). As a preliminary matter, the Board concedes that it is likely that the Veteran would have been exposed to asbestos while working as an electrician's mate. Specifically, the Board observes that the Veteran's military occupation specialty has a "probable" probability of asbestos exposure. Accordingly, the Board finds that the evidence is at least in equipoise that the Veteran was exposed to asbestos during his active duty service. See M 21-1 VA Adjudication Procedures Manual, Part IV, Subpart ii, Chapter 1, Section I.3.a. Next, based upon the evidence of record, the Board determines that service connection is not warranted for the Veteran's bilateral hip disorder, right knee disorder, tremors of the bilateral upper extremities, neuropathy of the bilateral lower extremities, and chronic joint pain because the preponderance of the evidence weighs against finding that they began during service or are otherwise etiologically related to service, including his exposure to asbestos, fiberglass, and other "chemicals." 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309. Initially, the Board finds that the Veteran's service treatment records fail to establish that his bilateral hip disorder, right knee disorder, tremors of the bilateral upper extremities, neuropathy of the bilateral lower extremities, and chronic joint pain began during or are otherwise etiologically related to his active duty service for several reasons. First, his service treatment records do not reflect that he sought treatment for, reported signs or symptoms of, or was diagnosed with a right hip disorder, a left hip disorder, a right knee disorder, tremors of the right upper extremity, tremors of the left upper extremity, neuropathy of the right lower extremity, neuropathy of the left lower extremity, or chronic joint pain. Next, the report from his August 1967 separation examination reflects that the examining physician determined that his upper extremities, lower extremities, spine and musculoskeletal system, and neurologic system were "normal," and does not document any complaints or symptoms that could be attributed to tremors or chronic joint pain. Given that the Veteran did not seek treatment for, report signs or symptoms of, or receive a diagnosis of a right hip disorder, a left hip disorder, a right knee disorder, tremors of the right upper extremity, tremors of the left upper extremity, neuropathy of the right lower extremity, neuropathy of the left lower extremity, or chronic joint pain during his active duty service and that his separation examination was normal, the evidence does not show that these disorders began during or are otherwise etiologically related to his active duty service and renders any claim that they began during or are otherwise etiologically related to active duty service not credible. Accordingly, his service treatment records fail to establish that service connection for these disorders is warranted. The post-service clinical evidence also fails to establish a relationship between the Veteran's current bilateral hip disorder, right knee disorder, tremors of the bilateral upper extremities, neuropathy of the bilateral lower extremities, and chronic joint pain and his active duty service. With respect to a left hip disorder, the post-service clinical evidence of record does not reflect that he sought treatment for or reported signs or symptoms of a left hip disorder until January 1989, more than 21 years after his separation from service. With respect to a right hip disorder, the post-service clinical evidence of record does not reflect that he sought treatment for or reported signs or symptoms of a right hip disorder until August 1994, more than 26 years after his separation from service. With respect to a right knee disorder, the post-service clinical evidence of record does not reflect that he sought treatment for or reported signs or symptoms of a right knee disorder until April 1990, more than 22 years after his separation from service. With respect to neuropathy of the bilateral lower extremities, the post-service clinical evidence of record does not reflect that he sought treatment for or reported signs or symptoms of neuropathy until October 1995, more than 28 years after his separation from service. With respect to tremors of the bilateral upper extremities, the post-service clinical evidence of record does not reflect that he sought treatment for or reported signs or symptoms of tremors until March 1996, more than 28 years after his separation from service. With respect to chronic joint pain, the post-service clinical evidence of record does not reflect that he sought treatment for or reported signs or symptoms of chronic joint pain, separate from pain in the joints of the hips and knee for which he seeks service connection, until December 1997, more than 30 years after his separation from service. Accordingly, a continuity of symptoms based upon the clinical evidence is not sufficient to support a direct nexus for the Veteran's bilateral hip disorder, right knee disorder, tremors of the bilateral upper extremities, neuropathy of the bilateral lower extremities, and chronic joint pain, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board acknowledges the Veteran's statements regarding the history of his symptoms of a bilateral hip disorder, right knee disorder, tremors of the bilateral upper extremities, neuropathy of the bilateral lower extremities, and chronic joint pain. Although he is competent to report that he has experienced symptoms of these disorders, he is not competent to determine that these symptoms were manifestations of a particular disorder. See Jandreau, 492 F.3d at 1377, 1377 n.4. Nevertheless, to the extent he contends that these disorders were caused by active duty service and have persisted since service, the Board determines that the reported history of continued symptoms is not credible or probative. Indeed, he contention that he has experienced continuous symptoms of these disorder is not credible given that he had a normal separation examination and did not seek treatment for or report symptoms of these disorders for significant durations in excess of 20 years. See Kahana v. Shinseki, 24 Vet. App. 428, 439-40 (2011). Moreover, with respect to his neuropathy of the bilateral upper extremities, his contention of continuous symptoms also is not credible because the evidence, including a September 1997 treatment record, shows that his neuropathy is related to his diabetes and emerged after he was diagnosed with diabetes, for which he has not been granted service connection. Further, with respect to tremors his contention of continuous symptoms also is not credible because a May 1997 treatment record that documents responses to a questionnaire reflects that he did not experience tremors. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and the current diagnosis. However, there is not sufficient evidence in the medical records to demonstrate a nexus between his active duty service and his bilateral hip disorder, right knee disorder, tremors of the bilateral upper extremities, neuropathy of the bilateral lower extremities, and chronic joint pain. Indeed, there is no objective medical evidence linking these disorders to his active duty service. Further, the Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a nexus between his active service and his bilateral hip disorder, right knee disorder, tremors of the bilateral upper extremities, neuropathy of the bilateral lower extremities, and chronic joint pain. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his disorders to his active duty service, including exposure to asbestos, fiberglass, and other chemicals. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau, 492 F.3d at 1377). In this case, however, the Veteran is not competent to provide statements regarding the etiology of his bilateral hip disorder, right knee disorder, tremors of the bilateral upper extremities, neuropathy of the bilateral lower extremities, and chronic joint pain. See Jandreau, 492 F.3d at 1377, n.4. Although he can provide competent statements regarding symptoms, these disorders are not disorders that can be diagnosed by their unique and identifiable features as they do not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See id. at 1376-77. Moreover, there is no evidence linking the claimed musculoskeletal disorders, tremors, and neuropathy to asbestos exposure or exposure to fiberglass or other chemicals during his active duty service. Indeed, his neuropathy has been linked to his nonservice-connected diabetes and no medical literature that is part of the record links his other disorders to exposure to asbestos, fiberglass, or other chemicals. For example, he relates his tremors to exposure to sulfuric acid, but the article that he submits links sulfuric acid to dermatitis, nosebleeds, nasal congestion, erosion of the teeth, perforation of the nasal septum, chest pain, bronchitis, and conjunctivitis. Thus, to the extent that the Veteran believes that his bilateral hip disorder, right knee disorder, tremors of the bilateral upper extremities, neuropathy of the bilateral lower extremities, and chronic joint pain are related to his active duty service, including his exposure to asbestos, fiberglass, and other chemicals, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. By virtue of the foregoing, the Board concludes that service connection for a bilateral hip disorder, a right knee disorder, tremors of the bilateral upper extremities, neuropathy of the bilateral lower extremities, and chronic joint pain is not warranted because the preponderance of the evidence is against the Veteran's claims. REASONS FOR REMAND 1. Entitlement to service connection for a respiratory disorder, to include as a result of asbestos exposure is remanded. The Board finds that a remand is required for the Veteran's claim of entitlement to service connection for a respiratory disorder. As set forth above, the Veteran's military occupation specialty has a "probable" probability of asbestos exposure. The probability of asbestos exposure, in conjunction with the medical literature that he submitted showing a relationship between exposure to sulfuric acid, carbon tetra-chloride, and trichloroethane and respiratory disorder, suggests that he may have a current diagnosis of a respiratory disorder that is etiologically related to his exposure to asbestos and these chemicals during his active duty service. Accordingly, he should be provided with a VA examination to determine whether he has a current diagnosis of a respiratory disorder that is etiologically related to his active duty service. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Obtain any treatment records from any VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit the medical records of such treatment. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine whether he has a currently diagnosed respiratory disorder and the nature, extent, onset, and etiology of any diagnosed respiratory disorder. The claims file should be provided to the examiner for review. All indicated studies deemed necessary by the examiner should be performed, and all findings of those tests should be reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed respiratory disorder is etiologically related to the Veteran's period of active duty service. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question or questions. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Crosnicker, Associate Counsel