Citation Nr: 21032214 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 10-12 696 DATE: May 26, 2021 ORDER Service connection fora right-hand disability, including Dupuytren's contracture of the right hand, to include as secondary to exposure herbicide agents is denied. Special monthly compensation (SMC) for the loss of use of the right hand is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a right-hand disability, to include Dupuytren's contracture began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran's service-connected disabilities have not resulted in the anatomical loss or loss of use of a hand or foot or the Veteran being permanently bedridden or so helpless as to be in need of regular aid and attendance; the Veteran does not have a service-connected disability rated as total and additional service-connected disabilities independently ratable at 60 percent or more; and he is not permanently housebound due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a muscle injury to the left hand to include Dupuytren's contracture are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for SMC for loss of use of the right hand are not met. 38 U.S.C. §§ 1114(l), (s), 5107; 38 C.F.R. §§ 3.350, 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to August 1970 and from February 1972 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in October 2013. A copy of the hearing transcript is of record. This case was previously remanded in March 2019 and January 2021 for additional development. This case has now been returned to the Board for appellate consideration. Service connection The Veteran contends that his right-hand disability is related to service, to include in-service exposure to herbicides. In the alternative, he contends that his right-hand disability is caused by heavy lifting in service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish a service connection for a 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of that disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents. In the case of such a Veteran, service incurrence for certain presumptive diseases will be presumed if they are manifest to a compensable degree within specified periods, even if there is no record of the disease during service: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, and trachea), and soft-tissue sarcomas. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). With regard to a present disability, a September 2011 VA examiner diagnosed the Veteran with Dupuytren's contracture. Thus, the first service connection element is met. With regard to an in-service disease or injury, the Veteran's service treatment records (STRs) show the veteran sought treatment for an injury to the right hand in 1969. The Veteran was treated for a right-hand condition involving an infection to some "sores" or "boils" during active duty. Additionally, the Veteran contends that he endured heavy lifting during service. Accordingly, the second service connection element is also met. Turning to nexus, the evidence of record does not support that the Veteran's current right-hand injury to include Dupuytren's contracture is etiologically related to his active service. In September 2011, the Veteran was afforded a VA examination of the hand. The examiner opined the Veteran's current residual impairment of the right hand is most likely due to his Dupuytren's contracture and resulting surgical treatment and not the infection in his right hand during active service. The examiner noted that the in-service cellulitis/infection of superficial boils/lesions on the dorsum of the right hand and forearm the infection resolved without indication of further complications and there is no indication of chronicity of symptoms as the Veteran's second period of active duty show no evidence of right hand complaints or treatment. The examiner further noted that the Dupuytren's contracture was to the palmar surface (flexor surface) of the right hand, which is the opposite side of the hand from the infection. He further reasoned that a review of the literature notes that Dupuytren's contracture is most likely thought to be a T4 mediated autoimmune condition with an unknown exact cause and the accepted, peer-reviewed, and credible orthopedic/medical literature does not support a finding that that a superficial cellulitis/infection in the remote past will cause Dupuytren's contracture in the distant future. Following Board remand, the Veteran was afforded an additional VA examination in October 2019. The examiner stated that there was insufficient evidence to support that the Veteran has a right hand disability as a result of herbicide exposure as the majority of scientific evidence, including the most recent Agent Orange update in 2018, does not support a finding that Dupuytren's contracture and osteoarthritis are etiologically related to Agent Orange herbicide exposure. He determined that the evidence supports neither a nexus etiologically linking the contractures and osteoarthritis directly to military service, herbicide exposure, another SC condition, nor aggravation by another service-connected condition. Following another Board remand, in March 2021, a VA examiner opined that the Veteran's right-handed Dupuytren's contracture is not related to presumed in-service herbicide exposure, heavy lifting in service, or the in-service infection in the right hand. He noted that during the Veteran's second period of service, the Veteran had no issues with his right hand. The examiner reasoned that the primary cause of Dupuytren's contractures is not known but genetics, ethnicity, sex, age, and some environmental factor and other disorders have been identified as having a major role in the development of the contracture. He explained that a genetic predisposition has been singled out as a major factor in this condition along with age, very common in men over 50 years of age. The preponderance of the available medical evidence does not support that the Veteran's current right hand disability is related to service. There have not been any probative medical opinions which have provided a positive nexus opinion. While the Board notes the Veteran believes his right hand disability is a result of his in-service infection/cellulitis or heavy lifting in service or exposure to herbicides, the Board must afford less weight to his lay opinion in this matter as he does not possess the requisite medical expertise to provide such an opinion as noted above. Accordingly, the Board finds that the weight of the evidence is against finding the Veteran's left-hand muscle injury and Dupuytren's contractures are related to his active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. As the preponderance of the evidence is against the claim, further application of the benefit-of-the-doubt doctrine is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. SMC for the loss of use of the right hand Special monthly compensation provided by 38 U.S.C. § 1114(l) is payable for anatomical loss or loss of use of both feet or one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or being permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 C.F.R. § 3.350(b). The criteria for determining that a veteran is so helpless as to need regular aid and attendance are contained in 38 U.S.C. § 3.352(a). 38 C.F.R. § 3.350(b)(3). Under 38 U.S.C. § 3.352(a), the following is accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 U.S.C. § 3.352(a). It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions which a veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that a veteran is so helpless, as to need regular aid and attendance are based on the actual requirement of personal assistance from others. The term "loss of use of a hand or foot" is defined as existing when "no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with the use of a suitable prosthetic appliance." For example: (a) Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more, will constitute loss of use of the hand or foot involved, and; (b) Complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. 38 C.F.R. § 3.350(a)(2). The record indicates that throughout the pendency of the appeal the Veteran has been service-connected for Post-Traumatic Stress Disorder (PTSD) rated as 30 percent disabling prior to February 2, 2021 and 50 percent disabling thereafter; bilateral hearing loss rated as noncompensable prior to August 3, 2000 and 30 percent disabling thereafter; right knee tendonitis rated as 10 percent disabling prior to January 5, 2021 and 30 percent thereafter; right knee meniscus tear rated as 20 percent disabling; right knee instability rated as 10 percent disabling; and tinnitus rated as 10 percent disabling. In this regard, the Veteran is not service connected for a right hand disability or any other disability that causes loss of use of his right hand. As the Veteran is not service-connected for any disability that causes the anatomical loss or loss of use of both feet, one hand and one foot, or blindness in both eyes with 5/200 visual acuity, the Board finds that the Veteran cannot prevail on his SMC claim under this part of the criteria at all times during the pendency of the appeal. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hemphill 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.