Citation Nr: 1322474	
Decision Date: 07/15/13    Archive Date: 07/24/13

DOCKET NO.  12-08 721	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota


THE ISSUES

1.  Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to herbicide exposure and ionizing radiation. 

2.  Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to herbicide exposure and ionizing radiation. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

R. Erdheim, Counsel


INTRODUCTION

The Veteran served on active duty from December 1953 to December 1973. 

This matter comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the issues on appeal.

In June 2013, the Veteran testified before the Board at a hearing held at the RO.  The Veteran submitted a private medical opinion in support of his claim with a waiver of RO jurisdiction.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).  


FINDINGS OF FACT

1.  Peripheral neuropathy of the bilateral upper extremities is not shown to be causally or etiologically related to any disease, injury, or incident in service and is not due to herbicide exposure or ionizing radiation in service. 

2.  Peripheral neuropathy of the bilateral lower extremities is not shown to be causally or etiologically related to any disease, injury, or incident in service and is not due to herbicide exposure or ionizing radiation in service.




CONCLUSIONS OF LAW

1.  Peripheral neuropathy of the bilateral upper extremities was not incurred in or aggravated by the Veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 3.303, 3.307, 3.309 (2012).

2.  Peripheral neuropathy of the bilateral lower extremities was not incurred in or aggravated by the Veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). 

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. 

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. 
 
The Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a February 2011 letter, sent prior to the initial unfavorable decision issued in May 2011, advised the Veteran of the evidence and information necessary to substantiate his service connection claims as well as his and VA's respective responsibilities in obtaining such evidence and information.  Additionally, the letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. 

Relevant to the duty to assist, the Veteran's service treatment and personnel records as well as post-service VA and private treatment records have been obtained and considered.  The Veteran has not identified any additional, outstanding records that have not been requested or obtained.  Although the Veteran has indicated treatment at Ellsworth Air Force Base, he has also stated that those records are not available and the RO requested twice that he submit an authorization to release the records, with no response.  Thus, the Board finds that no further development can be made with regard to those records.  The Board has also reviewed the Veteran's Virtual VA claims file.

The duty to assist also provides that VA will afford a claimant a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim.  38 C.F.R. § 3.159(c)(4).  In this case, the Veteran was afforded a VA examination in April 2011 which addressed whether the etiology of the Veteran's peripheral neuropathy.  The Board finds that the examination report is adequate as the examiner had knowledge of the relevant facts in regards to the Veteran's military and post-service medical history, and the medical conclusion is supported with data and a rationale.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  With regard to the theory of entitlement based upon ionizing radiation, the Board finds that further development is not necessary.   Significantly, the Veteran's peripheral neuropathy is not considered to be a radiogenic disease, nor is there any indication that the Veteran was exposed to ionizing radiation or to a "radiation-risk" activity while in service.  Accordingly, the Board finds that the Veteran's general statements that he was exposed to radiation in service when he flew C54's does not further invoke the duty to assist.  A conclusory generalized lay statement, as in this case, suggesting a nexus between a current disability and service would not suffice to meet the standards as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection.  Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  

The Veteran was also provided with a hearing related to his present claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  In this case, the VLJ explained the issues on appeal, and made note of the specific elements necessary to substantiate the service connection claim.  The VLJ also suggested the submission of any additional evidence.  Accordingly, the Veteran is not shown to be prejudiced on this basis.  The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims.

II.  Analysis

The Veteran contends that his peripheral neuropathy of the bilateral upper and lower extremities was caused by herbicide exposure or radiation in service.  He contends that beginning in service, he experienced tingling and numbness in his feet that has continued since service.  He contends that he was exposed to radiation when he flew C54's and was in close proximity to a radar that would cause him to develop blisters on his arm.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) .  Service connection may also be granted for any disease 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). 

Direct service connection may be granted with evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. 

Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or evidence of continuity of symptomatology.  If the disability claimed is not considered to be a chronic disease under 38 C.F.R. § 3.307, credible lay evidence of continuous symptoms may establish service connection.
Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, but not peripheral neuropathy, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii).  For purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the serviceman must have actually been present on the landmass or the inland waters of Vietnam during the Vietnam era.  See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). 

Certain diseases shall be service-connected if the Veteran was exposed to an herbicide agent during active service even though there is no record of such disease during service, provided that the requirements of 38 C.F.R. § 3.307(d) are satisfied.  38 C.F.R. § 3.309(e).

The Veteran's DD-214 form reflects that he served in Vietnam during the Vietnam War.  The Veteran was present on the landmass or the inland waters of Vietnam during service.  Thus, the Veteran will be afforded the herbicide presumption.

However, only those diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e) (2012) will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service.  Sub acute or acute peripheral neuropathy, described as transient peripheral neuropathy that appears within weeks or months of exposure and resolves within two years of date of onset, is a disease that has been associated with exposure to herbicide agents. 38 C.F.R. §§ 3.307(a)(6)(iii); 3.307(d), 3.309(e) (2012).  However, any other type of peripheral neuropathy has not been associated with exposure to herbicides on a presumptive basis.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Service treatment records reflect that on April 1970 annual flying examination, the Veteran denied any neuritis or paralysis, though he did report a variety of other unrelated symptoms and diagnoses.  On May 1973 annual physical, there was no indication of a history of any neuropathic symptoms in the Veteran's extremities.  

Post-service records reflect that in 1974, the Veteran filed a claim for service connection for a back disability.  On July 1974 VA examination, he reported back pain and did not report any neurological symptoms in his extremities.  Neurological examination, including sensory status, was normal.  

Private treatment records reflect that in August 2004, the Veteran presented for an annual physical examination and did not report any acute concerns.  Neurological examination was normal.  There was no ongoing diagnosis of any neuropathic condition.  In July 2007, the Veteran denied any numbness or weakness of the neurological system.  Examination of the extremities was normal.  

On January 2009 VA examination, related to a claim for increased rating for his low back disability, the Veteran again denied any neurological symptoms in the lower extremities.  Examination of the legs was negative for numbness or pain.  Reflexes were normal.  

Private treatment records reflect that in March 2009, the Veteran reported some swelling in his lower legs.  He was diagnosed with dependant edema.  In May 2009, the Veteran reported pain at the bottom of his feet for a long period of time.  He was diagnosed with peripheral neuropathy and prescribed medication for relief.  In June 2009, he reported good relief of his neuropathy with medication.  In February 2010, the Veteran underwent a sleep study and reported that he had a recent onset of neuropathy of the legs that had been attributed to the herpes virus as he had had shingles several years previously.  It was believed that his neuropathy was a sequalae of that disease.  He reported that he had always been bothered by leg cramps, or "Charlie horses" during the night time.  In January 2011, it was noted that the Veteran was bitten on the left leg in 2005 and was diagnosed with possible West Nile virus.  Since that time, he had had significant neuropathy of the legs.  He was diagnosed with peripheral neuropathy in 2009.  

In March 2011, the Veteran's private physician relayed the Veteran's history of being exposed to Agent Orange while in Vietnam.  The Veteran had reported to the physician that he remembered having symptoms in his legs in Vietnam and had in fact been treated by a flight surgeon while in service for those symptoms.  The assessment was peripheral neuropathy, idiopathic in nature, "in my opinion, possibly secondary to Agent Orange exposure."

On April 2011 VA examination, the examiner noted extensive review of the Veteran's claims file.  The Veteran reported that he had a burning sensation in his legs for several years.  He had been able to ignore it.  Three to four years ago, he felt unable to walk due to the pain.  Since being diagnosed with peripheral neuropathy and beginning medication, he was able to walk again.  After physically examining the Veteran, the examiner diagnosed the Veteran with early peripheral neuropathy as demonstrated primarily by the lack of vibratory sensation to his ankle and ball of the foot.  The condition was more than likely secondary to his diagnosed vitamin B12 deficiency and less than likely related to herbicide exposure.  The Veteran did not have sub acute or acute peripheral neuropathy as it did not occur within one year of exposure to Agent Orange and did not resolve within two years after the date it began.  Of interest was that the Veteran had impaired fasting glucose.  

In May 2013, the Veteran submitted a private opinion in support of his claim written by a physician who reportedly served with him while in Vietnam.  The physician stated that while in service, the Veteran had symptoms of peripheral neuropathy in the lower extremities described as burning and tingling.  The working diagnosis while in service was idiopathic peripheral neuropathy.  The physician stated that he was able to minimize and control the Veteran's symptoms in service with low doses of benzodiazepines and medicinal ethanol.  He still had a prescription for medicinal ethanol from his time in service.  It was his opinion that exposure to Agent Orange could account for the Veteran's peripheral neuropathy. 

The Veteran has also submitted a photograph of a flask of whiskey dispensed to him when he was in service that directed to take one shot to help with "insomnia."

First, the Board finds that service connection for peripheral neuropathy of the extremities is not warranted on a presumptive basis.  Significantly, the Veteran has never been diagnosed with acute or sub acute peripheral neuropathy of the extremities, and such was confirmed by the April 2011 VA examiner who found no indication that the Veteran ever suffered from that particular type of neuropathy.  The Veteran also does not contend that his neuropathy resolved two years after exposure to herbicides, a key indication of acute or sub acute neuropathy.  Accordingly, the evidence demonstrates that service connection based upon the presumptive conditions listed in 38 C.F.R. § 3.309 is not warranted.

Next, the Board concludes that the preponderance of the evidence is against a finding that the Veteran's peripheral neuropathy of the extremities was directly caused or aggravated by service, to include exposure to herbicides.  In that regard, the Board places greater probative weight on the April 2011 VA opinion finding that the Veteran's peripheral neuropathy was less likely than not related to service or herbicides in service, rather than on the March 2011 or May 2013 private opinions linking the condition to service.  For one, the April 2011 VA opinion conforms with the record.  The record weighs heavily against the Veteran's claim.  Although the Veteran has contended on many occasions during the appeal period that he suffered from neuropathic symptoms in service and ever since service, the records clearly demonstrates the opposite.  Instead, the service records, which do show treatment for a variety of other conditions despite the Veteran's contentions that he rarely sought treatment for his ailments, are completely negative for any neuropathic complaints.  Moreover, the post-service records, which also demonstrate treatment for other disabilities, including his service-connected low back disability, are completely silent for any indication of neuropathic symptoms until 2009.  The July 1974 VA examination indicated a negative neurological examination, and the Veteran did not report any neuropathic symptoms of the extremities at that time.  In fact, the Veteran continued to deny any neuropathic symptoms from 2004 to 2009, as indicated by the private treatment records and a VA examination that specifically asked whether he experienced any numbness in his extremities, to which he indicated in the negative.  Accordingly, there is ample evidence in this case that the Veteran did not in fact suffer from neuropathic symptoms since service or for more than 25 years following separation from service, despite his contentions to the contrary or the opinions provided by the private physicians.  That history was reviewed by the April 2011 VA examiner who concluded that the Veteran's current peripheral neuropathy was not related to service.  Rather, the examiner tied his peripheral neuropathy to his vitamin B12 deficiency.  Such also comports with the record, as the affirmative evidence shows a diagnosis of peripheral neuropathy that was either of idiopathic onset, or was due to other factors, including a B12 deficiency, or West Nile virus or herpes, both of which he contracted many years following service. 

Thus, to the extent that the Veteran has contended that he has experienced neuropathic symptoms since service discharge, the Board finds such statements to lack credibility and, therefore, accords less probative weight to such contentions.  In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). 

In the instant case, and for the reasons stated above, the Board finds the Veteran's statements regarding a continuous symptomatology to lack credibility as they are inconsistent with the other evidence of record and were made under circumstances indicating bias or interest.  Specifically, while the Veteran has alleged such symptoms, numerous medical documents show more than a 25 year gap without any symptoms, such as numbness or tingling in the feet, lessening the Veteran's credibility in stating that he experienced those symptoms since service.  While the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, the Board may, however, in the present case, consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  As described above, the Veteran's lay statements are discounted by the medical evidence and by his own statements when seeking medical treatment both in service, shortly after service, in the years since service discharge, and when his peripheral neuropathy was actually diagnosed in 2009.

It follows that the Board also places lesser probative weight on the March 2011 and May 2013 private opinions, as they are based largely on the Veteran's inaccurate lay history, as described above.  To that extent, the Board is not required to accept a medical opinion based upon a history supplied solely by the Veteran   that is inaccurate.  Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458, 460- 61 (1993).  The March 2011 opinion, which diagnoses the peripheral neuropathy as idiopathic but then concludes that it is "possibly" secondary to Agent Orange, appears to do so solely because the Veteran sated that he had leg pain in service.  The physician provides no other rationale for the conclusion reached.  Therefore, the opinion is based either on an inaccurate, or otherwise stated, noncredible history.  Either way, no rationale was provided.  Thus, the opinion is not probative to the Board.  With regard to the May 2013 opinion, although the opinion is provided by a physician who served with the Veteran, it is completely contradictory with the record and therefore the plausibility of the opinion is questionable.  For one, there is simply no indication in the service records that the Veteran had a "working diagnosis" of idiopathic peripheral neuropathy.  The service records do show that the Veteran was treated for a variety of other conditions, but neuropathy or neurological symptoms were never mentioned.  The physician does not state that he treated the Veteran without making any medical notation in the Veteran's service records, as would have to have been the case.  Moreover, the physician states that he had a prescription list that shows that he dispensed certain medications for neuropathy, but he does not state that the prescription list was for the Veteran.  The Board notes that the label on the bottle of liquor which the Veteran claims was prescribed for treatment of neuropathy clearly reflects that it was instead prescribed for the unrelated disorder of insomnia.  Finally, as with the March 2011 opinion, although the examiner states that it was reasonable to conclude that the Veteran's neuropathy was related to Agent Orange exposure, he provides no rationale for that conclusion.  And, the conclusion appears to be based on the Veteran's report of continuous symptoms in service and post-service, which has been discredited.  Accordingly, the opinion is also of low probative value to the Board. 

With regard to the Veteran's claim for service connection based upon exposure to ionizing radiation, service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways.  Ramey v. Brown, 9 Vet. App. 40 (1996). 

First, there are specific diseases that may be presumptively service connected if manifest in a radiation-exposed Veteran.  38 U.S.C.A. § 1112(c); 38 C.F.R. 
§ 3.309(d).  A radiation-exposed Veteran is one who participated in a radiation-risk activity.  A radiation-risk activity includes the onsite participation in a test involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites.  38 C.F.R. 
§ 3.309(d)(3).  In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. 

Second, other radiogenic diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2), found five years or more after service in an ionizing radiation-exposed veteran may also be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service, or if they are otherwise linked medically to ionizing radiation exposure while in service.  Peripheral neuropathy is not included under that regulation. 38 C.F.R. § 3.311(b)(2).  Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that supports that finding.  38 C.F.R. § 3.311(b)(4).  When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest 5 years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c).  When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. §§ 3.311(b), (c)(1).  The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is at least as likely as not that the disease resulted from in-service radiation exposure or whether there is no reasonable possibility that the disease resulted from in-service radiation exposure.  38 C.F.R. § 3.311(c)(1). 

Third, like in the case of herbicide exposure, direct service connection can be established by showing that the disease or malady was incurred during or aggravated by service, a task which includes the burden of tracing causation to a condition or event during service.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 

However, under the pertinent regulations, the Veteran does not suffer from a radiogenic disease, nor do his service personnel records indicate exposure to a radiation risk activity while in service.  In the present case, the Veteran has alleged exposure to what only can be described as non-ionizing radiation from aircraft radar system equipment.  The Court has taken judicial notice that naval radar equipment emits microwave-type non-ionizing radiation, which is not subject to review under the ionizing radiation statute and regulations.  Rucker v. Brown, 10 Vet. App. 67, 69-72 (1997) citing The Microwave Problem, Scientific American, September 1986; Effects upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological Effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984.  Thus, the first two theories of entitlement are not applicable to the claim.  Lastly, although the Veteran contends that he was exposed to radiation by way of the radar used in the airplane that he flew, the Board finds that the evidence weighs against the claim.  For one, there is no indication of peripheral neuropathy in service, the competent and credible evidence is against a finding of any continuity of symptoms for over 25 years since service, and there is no medical nexus relating his peripheral neuropathy with the radars used in service.  Moreover, the Veteran's lay statements contending a relationship between the radars used in service and his neuropathy are conclusory in nature, in that he states that he had blisters on his arms after flying.  He has not offered any specific contentions as to how his neuropathy, which is not characterized by blisters on the arms, was caused or aggravated by proximity to radar equipment.  Therefore, not only is there no evidence of a chronic disease in service or continuous symptoms since service, but there is also a lack of any credible or competent contention that his peripheral neuropathy was caused or aggravated by radar equipment in service other than the Veteran's conclusory claim.  And, for the reasons stated above, his credibility in this case has been discounted because his statements contradict the probative medical records. 

The Veteran has contended on his own behalf that his peripheral neuropathy of the extremities is related to his military service.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4   (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)."  Because, while the Veteran is competent to describe his neuropathic symptoms, the Board accords his statements regarding the etiology of such disorder less probative value as he is not competent to opine on such complex medical questions.  Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue.  See Jones v. Brown, 7 Vet. App. 134, 137 (1994).  Moreover, the Veteran has only offered conclusory statements regarding the relationship between his military service and peripheral neuropathy.  By contrast, the April 2011 VA examiner took into consideration all the relevant facts in providing the opinion reached, as described in detail above.

Therefore, based on the competent and probative evidence of record, the Board finds that service connection is not warranted for the Veteran's peripheral neuropathy, as that condition has been shown to have been causally or etiologically related to any disease, injury, or incident of service, or presumptively related to service.  In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim.  As such, that doctrine is not applicable in the instant appeal, and his claims must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 


ORDER

Service connection for peripheral neuropathy of the bilateral upper extremities is denied.

Service connection for peripheral neuropathy of the bilateral lower extremities is denied.


____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs