Citation Nr: 21021119 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 16-59 328 DATE: April 9, 2021 ORDER Service connection arthritis, to include as due to exposure to herbicide agents, is denied. FINDING OF FACT The Veteran’s arthritis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for arthritis are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1965 to June 1967 with additional reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection arthritis to include as due to exposure to herbicides The Veteran contends that he has arthritis due to in-service herbicide exposure in Vietnam. He contends medical literature supports a link between the late development of diseases such as arthritis and exposure to herbicide agents. 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, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2020). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2020); Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). As a preliminary matter, the RO has confirmed the Veteran's service in Vietnam. 06/27/2003 VA 21-3101. As such, exposure to herbicide agents is presumed. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the diseases listed under 38 C.F.R. § 3.309(e) shall be service-connected if the requirements of 38 C.F.R. § 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 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases associated with exposure to certain herbicide agents is as follows: 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; all chronic B-cell leukemias; 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); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Arthritis is not listed as a presumptive disease associated with exposure to herbicides. 38 C.F.R. § 3.309(e). However, the presumption for diseases associated with herbicide exposure does not preclude a claimant from establishing service connection with proof of actual causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).   The Board finds that while the Veteran has a diagnosis of arthritis, the preponderance of the evidence is against finding that it manifested during active service or within one year of discharge or is otherwise related to service, including herbicide agent exposure. A review of the Veteran service treatment records shows no reports of arthritis of the spine, neck, shoulders, and hands. During the Veteran’s 1967 separation examination, the Veteran was noted to have suffered a cracked right clavicle with no complaints or sequela. All other issues were denied. The Veteran was clinically assessed with a normal spine and musculoskeletal condition. Post-service private treatment records shows that the Veteran was assessed with a June 1977 small calcific density projected over transverse process of L-4 vertebra on the left side. A September 1984 army reserve enlistment examination shows that the Veteran’s spine was marked abnormal with mild upper lumbar spine, asymptomatic. A September 1988 army reserve enlistment examination showed that Veteran upper and lower extremities, spine, and feet were clinically assessed as normal. The examiner noted that the Veteran had a herniated disc lower back surgery performed in May 1988. A January 1992 army reserve report of medical history showed that the Veteran self-reported a history for recurrent back pain and foot trouble. The Veteran was clinically assessed as normal for the spine, upper and lower extremities. A June 1993 army reserve treatment record shows that the Veteran reported for lower back pain. A December 2019 VA examination report shows that after a review of the record and examination of the Veteran that it was less likely than not, that diagnosed arthritis was caused by active service to include exposure to herbicides. The examiner noted there was no evidence of any injury during active service, nor reports of a chronic back issue during active service. The examiner noted that the Veteran was assessed with mild degeneration of the lumbar spine in 1988. Additionally, the examiner reported that there was no literature to support that exposure to herbicides causes arthritis. Instead, the literature from NIH supports the development of rheumatoid arthritis or lupus or autoimmune disorder due to herbicide agent exposure. The Veteran does not have either of those diagnosis. Based upon the evidence of record, the Board finds that a chronic back disability was not manifest during active service and that arthritis or degenerative changes were not manifest within a year of discharge from active service. The evidence demonstrates that the Veteran was first assessed with a lower back condition after active service according to the VA examiner, onset in 1988, more than 20 years after his period of active duty. There is no competent evidence of the presence of arthritis to a compensable degree within one year of discharge. Service connection for arthritis on a presumptive basis is thus not warranted. Additionally, the Board finds that the VA examiner’s opinion opinions in this case is persuasive and based upon adequate rationale. The VA examiner is shown to have reviewed the evidence then of record and to have adequately considered the credible lay statements and reported symptom manifestation history of record and determined that his arthritis is not related to active service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board also noted that the Veteran has not asserted that his back condition onset or was caused by an injury or incident during service or any period of ACDUTRA/INACDUTRA but instead was caused only by his exposure to herbicide agents during active service. Here, as noted above arthritis is not one of the conditions listed as a presumptive disease associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). Therefore, presumptive service connection for arthritis is not warranted. Regarding whether the Veteran’s arthritis was caused by exposure to hebrides, as noted above, the VA examiner remarked that while the relevant literature supports the development of rheumatoid arthritis or lupus or autoimmune disorder due to herbicide agent exposure, the Veteran was not diagnosed with these types of arthritis. The record does not reflect either of those diagnoses. The Board finds that the preponderance of evidence is against a showing that the Veteran's arthritis was caused by exposure to herbicide agents. The Board finds that the VA examiner’s opinion is probative that the Veteran’s arthritis was not caused by his exposure to herbicide agents. The VA examiner conducted a thorough review of the record and provided a supporting rationale. Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The only evidence in support of the Veteran's contention that his arthritis is related to active service and herbicide agent exposure are his contentions. While the Veteran may be credible to describe the particular symptoms which he experiences, determining the exact nature and diagnosis of arthritis and whether arthritis was caused by exposure to herbicide agents, requires specialized testing and medical knowledge or training regarding toxic chemicals which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, the Veteran is not competent to provide an etiology opinion regarding his arthritis and herbicide agent exposure to service. (Continued on the next page)   In conclusion, the Board finds that service connection for arthritis to include as due to exposure to herbicide agents is not warranted. When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). As described above, the preponderance of the evidence is against this appeal. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.