Citation Nr: 1804150 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 13-34 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities (BUE and BLE peripheral neuropathy). 2. Entitlement to service connection for residuals of breast cancer. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel INTRODUCTION The Veteran served in the United States National Guard. She had yearly periods of active duty for training, beginning in November 1987 through January 1996, to specifically include January 1988 to June 1988, and had active duty from November 1990 to July 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript has been associated with the record. In March 2016, the Board remanded the case for additional development and it now returns for further appellate review. The Board observes that, following the Agency of Original Jurisdiction's (AOJ's) most recent adjudication of the Veteran's claims in a June 2016 supplemental statement of the case, additional evidence, to include unrelated VA examination reports, VA treatment records dated from June 2016 to January 2018, VA vocational rehabilitation records, and Social Security Administration records, was associated with the record. While the Veteran has not waived AOJ consideration of such evidence, the Board finds no prejudice in proceeding with a decision at this time as the newly received evidence is duplicative of the evidence previously considered by the AOJ, and thus not relevant. Specifically, such newly received evidence merely confirms current diagnoses of BUE and BLE peripheral neuropathy and residuals of breast cancer, facts that were previously of record and considered by the AOJ. 38 C.F.R. § 20.1304(c) (2017). FINDINGS OF FACT 1. BUE and BLE peripheral neuropathy is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of the Veteran's separation from active duty. 2. Residuals of breast cancer is not shown to be causally or etiologically related to any disease, injury, or incident during service, and a malignant tumor did not manifest within one year of the Veteran's separation from active duty. CONCLUSIONS OF LAW 1. The criteria for service connection for BUE and BLE peripheral neuropathy are not met. 38 U.S.C. §§ 101(24), 1101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.6(a), 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for residuals of breast cancer are not met. 38 U.S.C. §§ 101(24), 1101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.6(a), 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Neither the Veteran nor her representative has alleged any deficiency with respect to VA's duties to notify or assist. See Scott, supra (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Analysis A Veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other "than dishonorable." 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 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 not be granted without 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. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, tumors of the peripheral nerves, and malignant tumors, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, while the Veteran's claimed disorders are diseases enumerated under 38 C.F.R. § 3.309(a), the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson v. Brown, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve Veteran status for purposes of that claim"); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991); Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). 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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. BUE and BLE Peripheral Neuropathy The Veteran contends that she has BUE and BLE peripheral neuropathy as a result of her in-service duties as an equipment records and parts specialist, to include her periods of INACDUTRA, ACDUTRA, and active duty. 38 U.S.C. § 1154(a). Such duties included jumping out of and falling down from vehicles during service, namely large trucks, and heavy lifting, and resulted in exposure to chemicals from working in the motor pool, including diesel fuel, acid cleaner, and gas. The evidence of record shows that the Veteran has a current diagnosis of BUE and BLE peripheral neuropathy. Specifically, in April 2005, VA treatment records indicate that the she had a widespread severe sensory neuropathy consistent with diabetic neuropathy. Moreover, the Veteran's more recent VA treatment records reflect diagnoses of diabetic neuropathy with numbness and tingling to both upper and lower extremities, and chemotherapy-induced peripheral neuropathy. Therefore, the Board finds that the Veteran has a current diagnosis of BUE and BLE peripheral neuropathy. The Veteran's DD 214 clearly shows that her military occupational specialty was an equipment records and parts specialist. As such, the description of the Veteran's duties requiring her to climb in and out of large trucks and lift heavy equipment, as well as her in-service exposure to chemicals, is consistent with the circumstances of her service. Consequently, the only remaining inquiry is whether the Veteran's BUE and BLE peripheral neuropathy is related to her military service, including the Veteran's in-service exposure to automotive chemicals and fumes, impact from jumping/falling out of vehicles, and/or heavy lifting of objects during all periods of service. In this regard, the Veteran was afforded a VA examination so as to determine the nature and etiology of her BUE and BLE peripheral neuropathy in June 2016. At such time, the examiner interviewed the Veteran, reviewed the complete record, and conducted a full examination. In this regard, the examiner noted that the Veteran could not remember when she started having symptoms of neuropathy. She further noted that the Veteran was seen in service in April 1991 for Achilles tendonitis and in February 1991 for plantar fasciitis. She indicated that the Veteran's June 1994 periodic examination was negative for neuritis. She observed that the Veteran was diagnosed with diabetes mellitus type 2 in October 2003 and paresthesias in the upper and lower extremities were noted during a December 2004 diabetes consultation. The examiner further noted that, in 2005, the Veteran was diagnosed with peripheral neuropathy most likely due to her poorly controlled nonservice-connected diabetes. Thereafter, the VA examiner opined that the Veteran's diagnosed BUE and BLE peripheral neuropathy were not related to her service, to include Veteran's in-service exposure to automotive chemicals and fumes, impact from jumping/falling out of vehicles, and heavy lifting of objects during all periods of service. The examiner indicated that the Veteran did not have any issues as documented in the medical records of peripheral neuropathy until January 2003, which was years after her time in the service. Further, a 1994 periodic examination was negative for neuritis. The examiner further noted that the only toxins that may cause latent onset of peripheral neuropathy are hexane and similar toxins. However, the Veteran's exposure would have been so minimal and brief as far as causing any sequela. Moreover, the Veteran described her exposure to diesel fumes, but she failed to indicate the types of acids that she may have been exposed to. The examiner further noted that the main risk factors for the Veteran's neuropathy were poorly controlled diabetes and alcohol use. In this regard, she noted that the Veteran's chemotherapy may have contributed as well but less so than the diabetes and alcohol use. The examiner further noted that a blunt injury to a nerve may cause a compressive neuropathy to occur, but this was not the type of neuropathy the Veteran had and there were no latent onset of compressive neuropathies. She continued that, if a nerve gets damaged by trauma, the onset of symptoms is immediate. The Board accords great weight to the June 2016 VA examiner's opinion as it considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Importantly, there is no medical opinion of record to the contrary. Additionally, to the extent that the Veteran believes her BUE and BLE peripheral neuropathy is related to her military service, to include her in-service exposure to automotive chemicals and fumes, impact from jumping/falling out of vehicles, and heavy lifting of objects, as a lay person, she has not shown that she has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of peripheral neuropathy is a matter not capable of lay observation and requires medical expertise to determine. Specifically, the question of etiology of such disorder, to include whether such is related to in-service exposure to diesel fumes and/or other chemicals, or trauma as a result of falling or lifting, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran's opinion as to the etiology of her BUE and BLE peripheral neuropathy is not competent evidence and, consequently, is afforded no probative weight. Thus, the Board finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertions. The Board has also considered whether service connection for BUE and BLE peripheral neuropathy is warranted on a presumptive basis, to include on the basis of a continuity of symptomatology. In this regard, the clinical evidence of record fails to show that the Veteran manifested peripheral neuropathy to a degree of 10 percent within the one year following her discharge from active duty service in July 1991. Furthermore, on the Veteran's April 1991 medical examination, her upper and lower extremities were clinically evaluated as normal. Additionally, at a VA general surgery examination conducted in April 2001, the Veteran did not have any neurologic conditions. Further, the earliest evidence demonstrating symptoms of peripheral neuropathy is dated in January 2003, at which time only occasional numbness in both arms and legs was noted. Consequently, while the Board has considered the Veteran's statements regarding a continuity of upper and lower extremities symptomatology since service, the contemporaneous evidence fails to demonstrate that peripheral neuropathy manifested within her first post-service year, or that her reports of upper and lower extremities pain since service have been related to a diagnosis of peripheral neuropathy within the first post-service year. As such, presumptive service connection, to include on the basis of continuity of symptomatology, is not warranted for BUE and BLE peripheral neuropathy. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Based on the foregoing, the Board finds that BUE and BLE peripheral neuropathy is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of the Veteran's separation from active duty. Therefore, service connection for such disorder is not warranted. 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 of entitlement to service connection for BUE and BLE peripheral neuropathy. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. B. Residuals of Breast Cancer The Veteran contends that her breast cancer, and residuals thereof, was caused by exposure to chemicals in service from working in the motor pool, including diesel fuel, acid cleaner, and gas. VA treatment records document that a lump was first identified in the Veteran's right breast in September 2000. Thereafter, breast cancer was diagnosed and she underwent chemotherapy and a lumpectomy in April 2001. As the Veteran has been diagnosed with breast cancer and has alleged that such is due, in part, to activities the Board finds consistent with her in-service duties, the only element of service connection at issue in this case is whether the Veteran's residuals of breast cancer is related to her military service. In this regard, the Veteran was afforded a VA examination so as to determine the etiology of her residuals of breast cancer in June 2016. At such time, the examiner interviewed the Veteran, reviewed the complete record, and conducted a full examination. During the examination, the examiner noted that a lump was found in the Veteran's right breast in 2000. The examiner observed that the Veteran's June 1994 period examination did not note any female issues. The Veteran reported that the diagnosis was delayed because the doctors thought she just had a cyst; however, the examiner noted that the Veteran's statements were inconsistent with the record. She further observed that the Veteran was diagnosed with breast cancer in December 2000 and had a lumpectomy in April 2001. She also noted an August 2005 left breast mastoplexy. The VA examiner found that the Veteran's residuals of breast cancer were not related to her service, to include her in-service exposure to automotive chemicals and fumes. As rationale, she opined that there was no support for the claim that the Veteran's breast cancer was incurred while in the service and any exposure to chemicals/diesel fumes would have been very minimal. She noted that few toxins were known to cause breast cancer and they did not include diesel fumes, which was the only toxin the Veteran identified. The examiner further noted that the major risk factor for was gender, obesity, and family history, and at least 2 of the Veteran's maternal aunts had breast cancer. The Board accords great weight to the June 2016 VA examiner's opinion as it considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Importantly, there is no medical opinion of record to the contrary. Additionally, to the extent that the Veteran believes her residuals of breast cancer are related to her military service, to include her in-service exposure to automotive chemicals and fumes, as a lay person, she has not shown that she has specialized training sufficient to render such an opinion. See Jandreau, supra. In this regard, the etiology of breast cancer is a matter not capable of lay observation and requires medical expertise to determine. Specifically, the question of etiology of such disorder, to include whether such is related to in-service exposure to diesel fumes and/or other chemicals, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Woehlaert, supra. Accordingly, the Veteran's opinion as to the etiology of her breast cancer, and residuals thereof, is not competent evidence and, consequently, is afforded no probative weight. Thus, the Board finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertions. The Board has also considered whether service connection for breast cancer, as a malignant tumor, is warranted on a presumptive basis, to include on the basis of a continuity of symptomatology. In this regard, the clinical evidence of record fails to show that the Veteran manifested a malignant tumor to a degree of 10 percent within the one year following her discharge from active duty service in July 1991. In this regard, her service treatment records are entirely negative for a tumor of the breast, or any suspicious lumps. Rather, the earliest evidence demonstrating symptoms of found to be related to breast cancer is dated in September 2000. Consequently, while the Board has considered the Veteran's statements regarding a continuity of breast symptomatology, to include cysts, since service, the contemporaneous evidence fails to demonstrate that a malignant tumor manifested within her first post-service year, or that her reports of cysts since service have been related to a diagnosis of breast cancer within the first post-service year. As such, presumptive service connection, to include on the basis of continuity of symptomatology, is not warranted for breast cancer, or residuals thereof. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Based on the foregoing, the Board finds that residuals of breast cancer are not shown to be causally or etiologically related to any disease, injury, or incident during service, and a malignant tumor did not manifest within one year of the Veteran's separation from active duty. Therefore, service connection for such disorder is not warranted. 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 of entitlement to service connection for residuals of breast cancer. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for BUE and BLE peripheral neuropathy is denied. Service connection for residuals of breast cancer is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs