Citation Nr: 1754650 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 12-33 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to herbicide exposure. 2. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to herbicide exposure. 3. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to herbicide exposure. 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to herbicide exposure. 5. Entitlement to service connection for residuals of a head injury. 6. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Trickey, Associate Counsel INTRODUCTION The Veteran had active military service from May 1967 to May 1970. These matters come to the Board of Veterans' Appeals (Board) on appeal following June and October 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In July 2015, the Veteran testified before a Veterans Law Judge (VLJ) during a Board videoconference hearing. The VLJ who held the July 2015 hearing has since retired. As per VA laws and regulations, the Veteran was offered hearing before a second Veterans Law Judge; he responded in October 2017 that he did not want an additional hearing. See 38 C.F.R. § 20.704 (2017). FINDINGS OF FACT 1. The preponderance of the evidence fails to establish that the Veteran has or had a peripheral neuropathy of the right upper extremity disability for VA purposes at any time during the pendency of the appeal. 2. The preponderance of the evidence fails to establish that the Veteran has or had a peripheral neuropathy of the left upper extremity disability for VA purposes at any time during the pendency of the appeal. 3. The preponderance of the evidence fails to establish that the Veteran has or had a peripheral neuropathy of the right lower extremity disability for VA purposes at any time during the pendency of the appeal. 4. The preponderance of the evidence fails to establish that the Veteran has or had a peripheral neuropathy of the left lower extremity disability for VA purposes at any time during the pendency of the appeal. 5. The preponderance of the evidence shows that the Veteran did not suffer a head injury or aneurysm in service; hearing testimony shows the Veteran reported an aneurysm repair in 1987. 6. The preponderance of the evidence shows that the Veteran's hypertension was not manifest in service or to a compensable degree within one year of service and is unrelated to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 5. The criteria for service connection for a traumatic brain injury, to include aneurysm, have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 6. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Law and Regulations Veterans are entitled to VA disability compensation benefits if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present 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." See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For VA purposes, chronic diseases are listed in 38 C.F.R. § 3.309(a) and include hypertension and 38 C.F.R. § 3.309(e) in regard early onset peripheral neuropathy. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Moreover, where a chronic disease becomes manifest 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. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). Service connection may be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (2017). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Peripheral Neuropathy Service records indicate that the Veteran served in the Republic of Vietnam. The Board finds that a presumption that the Veteran was exposed to herbicide is warranted. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. However, the Veteran has not submitted any evidence of a peripheral neuropathy disability during the appellate period. The Board has reviewed the evidence of record, to include the VA medical records and private treatment records. These records do not contain evidence of peripheral neuropathy during the appellate period and the service treatment record does not contain evidence of peripheral neuropathy in service or within one year of discharge in regard to early onset peripheral neuropathy. 38 C.F.R. § 3.309(e). Indeed, a September 2011 neurological examination revealed upper and lower extremities within normal limits. Further, the Board also notes that the Veteran has not submitted any evidence of a causal relationship between his service and any peripheral neuropathy disability. See Shedden, 381 F.3d 1163 (Fed. Cir. 2004). In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board notes that the Veteran reported at the June 2015 hearing that he had intermittent numbness of the left foot. The Board finds that the Veteran is competent and credible to report observing symptoms of left foot numbness. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds, however, that the diagnosis of peripheral neuropathy - or any neurological condition - is not capable of lay observation. Thus, the Board finds that as to the service-connection element of "a current disability," the Veteran's testimony is outweighed by the medical evidence showing normal bilateral upper and lower extremities. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In light of the lack of evidence of a peripheral neuropathy disability within the appellate period; the Board concludes a preponderance of the evidence is against the claim and there is no doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Traumatic Brain Injury - Aneurysm The Veteran filed a claim in October 2010, asserting he incurred a head injury in service with a resultant aneurysm. The Veteran denied a history of head injury on his April 1970 Report of Medical History and a head injury was not noted on his separation Report of Medical Examination dated April 1970. The service treatment record does not indicate that the Veteran was treated for or complained of a head injury. The VA medical record contains a treatment note that indicates the Veteran underwent aneurysm repair in the 1980's. See VA treatment note dated March 2015. The Board notes that the Veteran reported at the June 2015 hearing that he experienced a head injury in service, and that he believes this injury caused an aneurysm. He also asserted that he underwent repair for an aneurysm in approximately 1987. The Veteran has reported to VA that the medical records of his aneurysm repair are not available. See Report of General Contact dated March 2013. In light of the Veteran's denial of a history of head injury on separation from service, he is considered less than fully credible regarding the assertion of in-service injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996). The Veteran's lay assertions are afforded less the probative value than the service and post-service medical record showing no in-service injury and the incurrence of pathology post-service. Layno v. Brown, 6 Vet. App. 465, 470 (1994). While the record contains notations that the Veteran has a history of aneurysm repair and the Veteran has testified that this was treated in 1987, the record does not contain evidence of a causal link between the Veteran's service and his history of aneurysm repair in 1987. See Shedden, 381 F.3d 1163 (Fed. Cir. 2004). In light of the contradictory evidence of an in-service head injury, and lack of evidence of a relationship between his service and a current traumatic brain injury disability; the Board concludes a preponderance of the evidence is against the claim and there is no doubt to be resolved. Gilbert, 1 Vet. App. 49 (1990). Hypertension The Veteran claims that he has hypertension that is due to or aggravated by his service-connected posttraumatic stress disorder. The record reflects that the Veteran's blood pressure readings were 122/76 on entrance in September 1966 and 130/80 on separation examination in April 1970. The Board finds that the service treatment records do not show a combination of hypertension manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Furthermore, the evidence does not establish that hypertension was manifest to a compensable degree with one year of separation. 38 C.F.R. §§ 3.307; 3.309 (2017). The Board has reviewed the evidence of record, to include the VA examination reports and private treatment records. These records do not include any opinion linking the Veteran's hypertension disability to service or a service-connected disability. VA obtained a medical examination in January 2016. The VA examiner noted the Veteran had no evidence of hypertension in service and that hypertension was diagnosed in 2003. The examiner noted that the Veteran's hypertension was not caused or aggravated by his posttraumatic stress disorder as his blood pressure is stable and easily controlled. The examiner noted that the Veteran's blood pressure is more closely associated with his weight gain and long history of smoking. The examiner opined that it is less likely than not that the Veteran's hypertension disability was incurred in or otherwise caused by active service or a service-connected disability. See January 2016 VA examination report; see also Addendum opinion dated June 2017. The Board finds that the January 2016 and June 2017 VA examination and opinions are afforded more probative value than the Veteran's generalized assertions as the VA examiner included rationale for the opinion offered therein and this opinion was supported by citation to service treatment record. Nieves-Rodriguez, 22 Vet. App. 295 (2008). The medical evidence of record, including the service treatment record and the January 2016 and June 2017 VA examinations, are afforded greater probative value than the more general lay assertions of the Veteran, even assuming those lay assertions were competent. See Kahana, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). In sum, there is no reliable evidence to corroborate the Veteran's assertions that this disorder, with an onset many years after service, are related to his service-connected disability. The Board finds that the Veteran's claim does not satisfy the requirement of in-service incurrence or aggravation of a disease or injury; or a causal relationship between the present disability and a service-connected disability. Shedden, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Accordingly, as the preponderance of the evidence is against the claim, service connection is not warranted for hypertension on any basis. Gilbert, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for peripheral neuropathy of the right upper extremity is denied. Service connection for peripheral neuropathy of the left upper extremity is denied. Service connection for peripheral neuropathy of the right lower extremity is denied. Service connection for peripheral neuropathy of the left lower extremity is denied. Service connection for residuals of a head injury is denied Service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is denied ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs