Citation Nr: 21025932 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-22 058 DATE: April 29, 2021 ORDER Service connection for unspecified disability to account for joint pain of all joints, to include as due to exposure to herbicides is denied. REMANDED Entitlement to service connection for carpal tunnel syndrome, left upper extremity (claimed as bilateral hand neuropathy), to include as due to exposure to herbicides is remanded. Entitlement to service connection for carpal tunnel syndrome, right upper extremity (claimed as bilateral hand neuropathy), to include as due to exposure to herbicides is remanded. Entitlement to a rating in excess of 10 percent for bilateral hearing loss is remanded. FINDINGS OF FACT The Veteran’s multiple joint pains began many years after service and are not related to service or any disability of service origin. CONCLUSIONS OF LAW The criteria for service connection for multiple joint/muscle pain, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 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 in the United States Air Force from December 1966 to December 1970, including service in the Republic of Vietnam. The Veteran presented sworn testimony at a hearing before the undersigned in October 2018. The Board remanded the above issues for additional development in April 2019. Additionally, the Board notes, in a November 2018 rating decision, the RO granted entitlement to individual unemployability (TDIU), effective January 23, 2013, the earliest effective date of service connection for the Veteran’s service-connected disabilities. Therefore, that issue is not before the Board. Entitlement to service connection for unspecified disability. The Veteran asserts that his unspecified joint disability accounts for pain in all of his joints, is related to service, to include as due to herbicide exposure as a result of his service in Vietnam. Specifically, the Veteran testified that when he returned back from Vietnam for the third time noticed he was having a lot of pain in his shoulders and hip. See October 2018 Hr’g Tr at 29. The question for the Board is whether the Veteran has a current joint disability to include the shoulders, back, hips, and left knee that began during service or is at least as likely as not related to an in-service injury, event, or disease. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected, even though there is no record of such disease during service. 38 C.F.R. §§ 3.307 (a), 3.309(e). Diseases entitled to the presumptive service connection based on such exposure are listed under 38 C.F.R. § 3.309(e). A presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Health Outcomes Not Associated with Exposure to Certain Herbicide Agents, 72 Fed. Reg. 32,395 (June 12, 2007). The Board notes that the Veteran had service in the Republic of Vietnam and thus he is presumed to have been exposed to Agent Orange. The Board concludes, however, that the preponderance of the evidence is against finding that a current multiple degenerative joint condition, to include joint pain is related to his presumed exposure to Agent Orange. The disease processes for which the Veteran seeks service connection are not enumerated in 38 C.F.R. § 3.309(e). Accordingly, the presumption of service connection under 38 C.F.R. § 3.307 does not apply. The Veteran still has the opportunity to show that his presumed exposure to Agent Orange is directly responsible for his disabilities. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, however, no medical professional has ever related any joint complaints of the shoulders, hands, hips, legs and back to his presumed Agent Orange exposure. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Board concludes that the preponderance of the evidence is against finding that a current joint disability to include the shoulders, hands, back, legs, and hips began during active service, or is otherwise related to an in-service injury, event, or disease. The Board remanded this issue for additional development, to include a VA examination in April 2019. In doing so, the Board invited the Veteran to submit additional statements corroborating his report of having recurrent problems since service. The Veteran was afforded a VA examination in December 2019. The examiner reported that a diagnosis of fibromyalgia was not warranted. The examiner noted, the Veteran has never been diagnosed with fibromyalgia; however, the Veteran has been diagnosed with DJD in multiple joints and neuropathy from carpal tunnel syndrome. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Veteran’s October 1970 separation examination is negative for any complaints of joint pain. Further, the Veteran’s service treatment records do not reflect an in-service related injury or complaints of pain. The examiner noted that the Veteran does not have a diagnosis of fibromyalgia and that the Veteran had no joint pain until ten years ago. The Veteran reported having bilateral shoulder surgery in his left shoulder in 2008 and his right shoulder in 2005 due to a fall. The examiner noted that there is documentation to support DJD in multiple joints and previous surgeries. She determined the Veteran’s degenerative joint disease is not related to herbicide exposure. The Board notes, that although the Veteran believes that his multiple joint complaints are related to an in-service injury, event, or disease, including presumed Agent Orange exposure, he is not competent to provide a nexus opinion in this case. Jandreau, 492 F.3d at 1372 (lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Buchanan, 451 F.3d. at 1331 (lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself). In the Veteran's case, such nexus opinions require a certain level of expertise given the medically complex question. Lay opinion is not sufficient in this case to prove nexus.). In addition, the Board finds the Veteran’s report of recurrent problems since service not credible because of his inconsistent account. In this regard, the Board notes that in offering a negative nexus opinion, in addition to the findings of his physical examination and the medical evidence of record, but the examiner also highlighted that the Veteran reported having no joint pain until ten years ago. The weight of the competent demonstrates that the Veteran's diagnosed DJD in multiple joints began many years after his period of service and were not caused by or related to any incident of service, to include presumed herbicide exposure. Accordingly, the preponderance of the evidence is against the claim for service connection, and there is no doubt to be resolved, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for carpal tunnel, left upper extremity and right upper extremity. The Veteran asserts that his carpal tunnel syndrome began in service as a result of his work as an electrician during service or alternatively due to herbicide exposure as a result of his service in Vietnam. See June 2015 Form 9; see also April 2014 NOD. As previously noted, the Board remanded this issue for additional development to include a VA examination in April 2019. The Veteran was afforded a VA examination in December 2019. The examiner provided a negative nexus opinion regarding direct service connection; however, he did not address secondary service connection. Further, the examiner noted, the Veteran denied any pain in the hands or extremities until ten years ago. However, the VA examiner did not specifically acknowledge and discuss the Veteran’s competent and credible statements that he started having carpal tunnel symptoms described as numbness, and tingling in his hands and fingers, during service and that they have been recurrent since that time. The examiner noted that the Veteran did not complain of neuropathy until 2004 and his discharge examination was negative. He reasoned that the Veteran’s neuropathy is limited to his hands therefore, it is likely as not related to Agent Orange exposure but the diagnosed carpal tunnel syndrome. However, the VA examiner did not address whether the Veteran’s carpal tunnel was related to his Agent Orange exposure during service. As such, the Board is remanding for substantial compliance with the April 2019 remand directives. Stegall v. West, 11 Vet. App. 268, 271 1998). 2. Entitlement to a rating in excess of 10 percent for bilateral hearing loss is remanded. At the October 2018 hearing before the Board, the Veteran testified that his hearing has worsened since his last hearing in February 2014. Additionally, the Veteran testified that the ringing in his ears is so bad that it makes it difficult to do a comprehensive evaluation. In November 2018, the Veteran was afforded a VA examination. The November 2018 VA examiner that she could not test (CNT) the pure tone thresholds for the Veteran’s hearing. The examiner stated there were inconsistent results between speech audiometry and pure tone audiometry. The results reviewed with poor reliability following reinstruction of task. In April 2019, the Board remanded this issue for additional development, to include a contemporaneous VA Examination. In July 2020, the Veteran was afforded a VA examination. The July 2020 VA examiner that she could not test (CNT) the pure tone thresholds for the Veteran’s hearing. The examiner indicated there were one or more frequencies that could not be tested and that the test results are not valid for rating purposes because the Veteran’s STRs are inconsistent with PTAs, inconsistent with organic hearing loss and inconsistent with his previous 2014 hearing loss examination. Therefore, the VA examiner could not determine hearing sensitivity. Veteran reports he has difficulty hearing almost everything. The VA examiner did not indicate the Veteran did not cooperate during the VA examination. The Board is left without the pure tone threshold numeric values that are needed to evaluate the Veteran's bilateral hearing loss disability. A contemporaneous VA examination is needed to properly assess the current severity of the Veteran's hearing loss. Under these circumstances, VA cannot rate the service-connected bilateral hearing loss disability without further medical clarification, a remand is warranted. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and any individual who has first-hand knowledge, and/or were contemporaneously informed of his left upper and right upper extremity and joint pain in all joints symptomatology during and since service and the nature, extent, and severity of his service-connected bilateral hearing loss. An appropriate amount of time should be allowed for the Veteran to respond. 2. Schedule the Veteran for a VA examination to determine the nature, onset and etiology of any functional impairment of his left upper and right upper extremities. For any such functional impairment found to be present, the examiner should opine whether it is at least as likely as not related to an in-service injury, event, or disease, include his presumed exposure to herbicide agents. If the examiner determines any such impairment is not directly related to service, then he or she should express an opinion as to whether it is at least as likely as not it was caused or aggravated by his service-connected disabilities. The examiner must specifically acknowledge and discuss the Veteran’s competent and credible statements that he started having carpal tunnel symptoms, joint pain, numbness, and tingling in his hands, fingers, and bone pain in his shoulders and hip during service and they have been recurrent since that time. The Veteran states, the pain shoots up through both of his shoulders. The has had surgery on both shoulders. The Board notes, the Veteran has been diagnosed with carpal tunnel in both upper extremities and had carpal tunnel surgery on both hands in approximately 2007 and 2008. The examiner should provide a complete rationale for all opinions reached. 3. Schedule the Veteran for a VA examinations to determine the current severity of his bilateral hearing loss. All findings should be reported in detail. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jacquelynn M. Jordan, 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.