Citation Nr: 1014303 Decision Date: 04/15/10 Archive Date: 04/29/10 DOCKET NO. 06-36 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as due to herbicide exposure, or as secondary to a service-connected disorder. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. M. Macierowski, Counsel INTRODUCTION The Veteran served on active duty from February 1964 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon (RO). In November 2006, the Veteran perfected his appeal with respect to the issues of entitlement to service connection for bilateral hearing loss, entitlement to service connection for tinnitus, entitlement to service connection for bilateral lower extremity peripheral neuropathy, and entitlement to service connection for posttraumatic stress disorder (PTSD). However, prior to certification of the Veteran's appeal, service connection for PTSD was granted by an August 2008 rating decision, and for the remaining issues in a May 2008 rating decision. As these decisions constitute a full grant of the benefits sought on appeal, the issues are not before the Board at this time. FINDINGS OF FACT 1. Peripheral neuropathy of the bilateral upper extremities is currently diagnosed. 2. The probative and persuasive evidence of record does not relate the Veteran's current diagnosed peripheral neuropathy of the bilateral upper extremities directly to service, to herbicide exposure during service, or to a service-connected disorder. CONCLUSION OF LAW Peripheral neuropathy of the bilateral hands was not incurred in or aggravated by military service, to include herbicide exposure, and is not proximately due to, or the result of, a service-connected disorder. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, all the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appeal. The Veteran must not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). In this case, the Veteran asserts that his peripheral neuropathy of the bilateral upper extremities is etiologically related to his service-connected diabetes mellitus, type 2. The record also raises the issue of whether the Veteran's peripheral neuropathy of the bilateral upper extremities is related to herbicide exposure in service. Finally, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); the United States Court of Appeals for Veterans Claims has specifically held that the provisions of Combee are applicable in cases involving herbicide exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). Therefore, service connection on a direct basis will also be considered. After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Direct Basis Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A current diagnosis of peripheral neuropathy was established at the March 2005 VA diabetes mellitus examination. It was also diagnosed during a February 2010 private evaluation by the Veteran's physician, Dr. L.E.G, who concluded that based on nerve conduction studies, the clinical examination, and the Veteran's reported history of his disorder, the Veteran had both ulnar nerve entrapment (previously found on multiple VA examinations and diagnosed as carpal tunnel syndrome), and mild neuropathy of the hands, the latter of which was considered to be "diabetic neuropathy." Peripheral neuropathy was also noted in a September 2009 VA outpatient record, and peripheral neuropathy "symptoms" were noted at the March 2005 VA diabetes mellitus examination. However, the record does not reflect, and the Veteran does not assert, that his peripheral neuropathy of the bilateral upper extremities is directly related to service. To that end, the probative and persuasive evidence of record does not relate the Veteran's peripheral neuropathy of the bilateral upper extremities directly to his military service. Accordingly, service connection for peripheral neuropathy of the bilateral upper extremities on a direct basis is not warranted. See 38 C.F.R. § 3.303. As Due To Herbicide Exposure Service connection for diabetes mellitus, type 2, was granted by a November 2006 rating decision, on the basis of herbicide exposure during the Veteran's in-country Vietnam service. Accordingly, exposure to herbicides has been established. VA regulations provide that if a veteran was exposed to an herbicide agent during active service, presumptive service connection may be warranted for several disorders, to include acute and subacute peripheral neuropathy. 38 C.F.R. §§ 3.307, 3.309. The term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e). However, the first evidence of the Veteran's peripheral neuropathy of the bilateral upper extremities is documented in March 2005. Moreover, the Veteran does not argue that it manifested within the presumptive period. Thus, even though a VA physician found in March 2005 that the Veteran's peripheral neuropathy of the upper extremities was possibly related to herbicide exposure, the Veteran's neuropathy did not manifest within weeks or months of exposure, as required by the pertinent regulations. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, service connection for peripheral neuropathy of the bilateral upper extremities, on the basis of exposure to herbicides, is not warranted. As Secondary To a Service-Connected Disorder Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). After careful consideration, the Board finds that the probative and persuasive evidence of record also does not support a grant of service connection for peripheral neuropathy of the bilateral upper extremities on a secondary basis. The February 2010 private opinion that the Veteran had both carpal tunnel syndrome, and diabetic neuropathy, of the upper extremities, was noted to be predicated partially on the Veteran's "history" as well as the clinical examination. However, the Veteran reported to that private physician that the symptoms in his fingers and hands had only begun in 2009, four years subsequent to his initial diabetes mellitus diagnosis in January 2005. But the evidence reflects that at both the March 2005 and October 2006 VA examinations, the Veteran reported that the numbness and tingling in his fingers and hands had occurred on and off for years. Thus, the Veteran's history, as reported to his private physician in February 2010, is inconsistent with the information he repeatedly provided in the past. Compare Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that VA cannot reject a medical opinion simply because it is based on a history supplied by a veteran and that the critical question is whether that history was accurate) to Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (concluding that the Board may reject such statements of a veteran if rebutted by the overall weight of the evidence). Conversely, the March 2005 VA examiner concluded that, while the Veteran did have some evidence of neuropathy in his hands, that it was likely "independent" from diabetes mellitus, since it started years before his diabetes mellitus was diagnosed. This was also based on the Veteran's history, a clinical examination, and nerve conduction study. As such, the Board finds that the February 2010 opinion warrants only minimal probative value, such that the probative and persuasive evidence of record does not support a finding of service connection on a secondary basis. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that the Board may appropriately favor the opinion of one competent medical authority over another.) To the extent that the Veteran was also diagnosed with carpal tunnel syndrome of the bilateral upper extremities, beginning in March 2005, the Board notes that the probative and persuasive evidence of record also does not relate it to the Veteran's service-connected diabetes mellitus, type 2. Indeed, the December 2007 VA diabetes mellitus examiner found that the Veteran's obesity was the probable cause of the bilateral upper extremity carpal tunnel syndrome, and the October 2009 VA examiner noted that because diabetes mellitus, type 2, was not a causative factor by itself for carpal tunnel syndrome, and that the Veteran's renal function was normal, that carpal tunnel sydrome was less likely than not a complication of diabetes mellitus, type 2. The Veteran's testimony at his March 2010 Board hearing has been considered, especially those statements indicating that the tingling and numbness in the bilateral upper extremities feels the same as the symptoms in his bilateral lower extremities. The United States Court of Appeals for Veterans Claims (Court) has noted that such statements are competent lay evidence of symptomatology. See Robinson v. Shinseki, 312 Fed. Appx. 336 (Fed. Cir. 2009); see also 38 U.S.C.A. § 1153(a) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303(a), 3.159(a). Moreover, the Board notes that service connection is currently in effect for peripheral neuropathy of the bilateral lower extremities, as etiologically related to diabetes mellitus. However, in addition to the probative and persuasive evidence ruling out such an etiology with respect to the bilateral upper extremities, it is well established that a lay person without medical training, such as the Veteran, is not qualified to render medical opinions regarding the etiology of disorders and disabilities. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159(a) (1). Accordingly, service connection for peripheral neuropathy of the bilateral upper extremities on a secondary basis is not warranted. Because the probative and persuasive evidence does not relate the Veteran's peripheral neuropathy of the bilateral upper extremities to his military service, presumptively to herbicide exposure, or to a service-connected disorder, the preponderance of the evidence is against her claim for service connection. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA's Duties to Notify and to Assist After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). A February 2005 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Although this letter failed to notify the Veteran of pertinent information related to the establishment of a disability rating and effective date, because the preponderance of the evidence is against the Veteran's claim for service connection, he was not prejudiced by this lack of notice. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration (SSA); therefore, the RO's failure to request and obtain any relevant SSA records was not in error. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in March 2005, October 2006, December 2007, and October 2009; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. ____ (2009); 129 S. Ct. 1696, 2009 WL 1045952, U.S., April 21, 2009 (No. 07-1209). ORDER Service connection for peripheral neuropathy of the bilateral upper extremities is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs