Citation Nr: 21022736 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-29 078 DATE: April 19, 2021 ORDER 1. Entitlement to service connection for arthritis of the right hand is denied. 2. Entitlement to service connection for arthritis of the left hand is denied. FINDINGS OF FACT 1. Arthritis of the right hand did not develop in service, was not present within the first post-service year, and is not causally related to service. Arthritis of the right hand is also not related to presumed exposure to herbicide agents in service. 2. Arthritis of the left hand did not develop in service, was not present within the first post-service year, and is not causally related to service. Arthritis of the left hand is also not related to presumed exposure to herbicide agents in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for arthritis of the right hand have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for arthritis of the left hand have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to May 1968. The Department of Veterans Affairs (VA) is grateful for his service. The Board remanded the appealed claims in March 2019. They now return to the Board for further review. The Board also remanded other issues for the VA Regional Office (RO) to issue of a statement of the case (SOC). The RO did so in July 2020, but the Veteran did not perfect an appeal of those issues. Service Connection 1. Entitlement to service connection for arthritis of the right hand 2. Entitlement to service connection for arthritis of the left hand The Veteran contends, in effect, that claimed arthritis of the right and left hands was due to injuries suffered in service or his heavy labor in service, or alternatively that it was due to exposure to herbicide agents (e.g., Agent Orange) in service. The Board here concludes that the preponderance of the evidence is against the claims based on all theories of entitlement presented, and accordingly denies the claims. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In the context of Reserve or National Guard service, active military service is defined to include any period of ACDUTRA in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of INACDUTRA during which the individual was disabled by an injury (but not disease) that was incurred or aggravated in the line of duty or during which he suffered a heart attack (myocardial infarction). 38 U.S.C. § 101(24). 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 opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The term "chronic disease" refers to those diseases, such as arthritis, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as cardiovascular disease, 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, 1112, 1113, 1137; 38 C.F.R. § § 3.307, 3.309(a). While the disease need not be diagnosed within the presumption 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. To establish presumptive service connection for a disease associated with exposure to certain herbicide agents (e.g., Agent Orange), the evidence must show the following: (1) that the veteran served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (or was otherwise exposed to an herbicide agent during active service); (2) that he currently suffers from a disease associated with exposure to certain herbicide agents listed under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases shall be service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin's disease, ischemic heart disease, 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). On January 1, 2021, the National Defense Authorization Act of FY 2021 became law. One section of the law added three disease to the list of those presumed service connected in veterans exposed to herbicide agents. Specifically, the law adds to 38 U.S.C. § 1116(a)(2), which currently lists diseases in subparagraphs (A) through (H), the following: (I) Parkinsonism, (J) Bladder cancer, and (K) Hypothyroidism. For diseases not among the enumerated diseases for which a presumption of service connection based on exposure to an herbicide agent has been established, service connection may still be established for the disease based on exposure to an herbicide agent if the weight of the evidence of record supports a causal link to that exposure, supported by medical opinion evidence that the herbicide agent caused the disease. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286-88 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In the March 2019 remand, the Board noted the Veteran had reported that he suffered an injury in service, when he was knocked down by explosions and firefights and knocked 30 feet off a bridge into water. He also reported that his work in service included carrying heavy beams and swinging sledgehammers as part of his duties as a Seabee. Within the remand, the Board noted that service personnel records confirmed that the Veteran had combat service and service in a construction battalion. The Board also found that the Veteran served in Vietnam during the Vietnam Era and accordingly is presumed to have been exposed to herbicide agents. However, a presumption is not recognized for arthritis based on exposure to herbicide agents. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In an April 2016 VA examination report, the examiner documented diagnoses of degenerative arthritis of the hands (metacarpophalangeal joints, proximal interphalangeal joints, and distal interphalangeal joints) with the record reflecting onset in 2013 for the right hand and onset in 2016 for the left hand. The examiner noted the Veteran’s self-reported history of several types of jobs that the Veteran held in years following service, which were physically demanding on his hands, including a tool and die maker, an automation specialist, a welder, an equipment builder, and a mechanic. The Veteran reported currently having significant hand symptoms related to his arthritis and having to continually exercise his hands to improve his symptoms including pain and loss of function. The examiner recognized the Veteran’s loss of function due to arthritis. However, the examiner explained that in-service lacerations to the Veteran's left hand (that resulted in his currently service-connected, noncompensable left-hand scars) were not significant enough to result in his currently diagnosed arthritis, and opined that those injuries did not result in his left hand arthritis. The examiner did not otherwise address the Veteran’s activities in service and did not opine whether the Veteran’s current arthritis of the hands were related to activities including the Veteran’s physically demanding construction work in service. The Board remanded for an examination addressing the likelihood that construction work in service as a Seabee in a Naval construction battalion was linked to current arthritis of the hands and the likelihood that the arthritis was otherwise linked to service. Upon VA hand and fingers examination in November 2019, the examiner documented diagnoses of degenerative arthritis of the hands in 2016, with reported onset of symptoms in 2010 including stiffness, pain, and reduced dexterity, endurance, and grip strength with prolonged use. The Veteran reported subjective worsening of symptoms since their onset. November 2019 x-rays were reviewed, revealing bilateral hand osteoarthritis, worse on the right. Current reported symptoms included intermittent flare-ups with increased aching and at times swelling. The examiner observed normal range of motion of the hands, including with repetitive use, but concluded that the Veteran had functional loss due to pain, fatigue, weakness, lack of endurance, and incoordination. Muscle strength testing was normal. The examiner reviewed past examinations and treatment records, including a left hand evaluation in 1985, which was normal (as pertaining to arthritis), and post-service examinations revealing mild degenerative changes in the left hand at the second and third dip joints in 2016 and mild interphalangeal and first carpal metacarpal osteoarthritis in the left hand in November 2019, and mild degenerative changes in the right hand in 2013, and interphalangeal and first metacarpal and metacarpophalangeal osteoarthritis in the right hand in November 2019. The examiner found overall functional impairment from the osteoarthritis of the hands to consist of reduced dexterity and endurance with prolonged use secondary to pain and weakness. The examiner concluded based on absence of evidence of hand degenerative changes in service, including normal left-hand x-rays in 1985, findings of only mild degenerative changes in the hands when the Veteran was an older adult in 2013 and 2016, and the substantial gap in time between service and any indications of arthritis in the hands, that the Veteran’s arthritis of the hands was likely age-related and was not at least as likely as not incurred in or caused by service. The examiner further explained that primary arthritis, as present in this case, was mostly due to aging. The examiner considered the Veteran’s reported duties in service, but nonetheless concluded that the evidence including particularly time of onset of symptoms and the Veteran’s age at the time of onset of symptoms weighed against the Veteran’s arthritis being causally related to service. The Board has carefully reviewed the record including consideration of the Veteran’s duties in service, his reported injury in service, and his history of arthritic symptoms and objective findings of arthritis within the past decade and hence multiple decades after the Veteran’s separation from service in May 1968. The Board concludes that the weight of competent and credible evidence is consistent with and supportive of the November 2019 VA examiner’s opinions that the Veteran’s late-onset arthritis of the hands was not incurred in or caused by service. In particular, the Board observes that while the Veteran is documented to have engaged in likely physically demanding work in service, this was for less than three years, whereas reported physically demanding work with his hands following service spanned decades. Hence, service connection on a direct basis is not warranted. 38 C.F.R. § 3.303. Absent evidence supporting arthritis within the first post-service year, service connection on a presumptive basis for arthritis of either hand on a first-year-post-service basis is also not warranted. 38 C.F.R. §§ 3.307, 3.309. While the Veteran has also claimed arthritis of the hands as related to his presumed exposure to herbicide agents in service, as already noted, arthritis is not a condition for which presumptive service connection based on exposure to herbicide agents is recognized, and medical opinion evidence has not been presented supporting such a link between exposure to herbicide agents and the development of arthritis in either hand. Combee, 34 F.3d at 1044-45. Hence, service connection based on exposure to herbicide agents is also not warranted. The Board does not question the Veteran’s belief that his arthritis of his hands is related to service based on one of the theories presented. However, such questions of a causal link between activities or exposures in service and onset of arthritis decades later are distinctly medical in nature, requiring specialized knowledge, training, and expertise, and hence beyond the ambit of lay knowledge and beyond lay competence. The Veteran has not been shown to possess the requisite expertise or knowledge to address these questions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Therefore, he is not competent to provide a nexus between the post-service arthritis involving the hands and service. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechter 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.