Citation Nr: 1805424 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 12-18 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to herbicide exposure during service. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to herbicide exposure during service. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from April 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was initially before the Board in February 2017, at which time it was remanded for additional development. The case has been returned to the Board at this time for further appellate review. The issues of service connection for tinnitus, and reopening claims of service connection for bilateral hearing loss, psychiatric disorder, to include posttraumatic stress disorder (PTSD), lumbar spine, and heart disorders have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. Throughout the appeal period, the Veteran has not had a neurological disability of either upper extremity or of the left lower extremity. 2. The Veteran's right lower extremity neurological disability did not have onset during active service, did not manifest within one year of separation from active service, and was not caused by active service, to include exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the bilateral upper extremities have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for establishing service connection for peripheral neuropathy of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. With respect to the claims herein decided, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). "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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection is available for a disease or disability that is proximately caused by a service connected disease or disability; and for the aggravation of a non-service connected disability by a service connected disease or disability. 38 C.F.R. § 3.310 (2017). Finally, VA regulations also provide that for a veteran who has been exposed to an herbicide agent, such as that contained in Agent Orange, during military service, service connection for early-onset peripheral neuropathy will be presumed, as long as the early-onset peripheral neuropathy becomes manifest to a compensable degree or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active service. See 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e) (2017). Herbicide agents are defined by VA regulation as a chemical used in an herbicide used by the United States, specifically noted as: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and, picloram. See 38 C.F.R. § 3.307(a)(6)(i) (2017). On appeal, the Veteran has asserted that his peripheral neuropathy of his bilateral upper and lower extremities is the result of military service, to include herbicide exposure as a result of his service aboard the U.S.S. Clarion River. As an initial matter, VA has conceded that the Veteran had service aboard the U.S.S. Clarion River during his period of military service. Furthermore, in an October 2010 memorandum, VA conceded that during the Veteran's period of service aboard the U.S.S. Clarion River, that vessel had service in the inland waterways of the Republic of Vietnam. Consequently, the Veteran is presumed to have been exposed to herbicides as a result of his military service. See 38 C.F.R. § 3.307(a)(6)(iii) (2017); Haas v. Peake, 525 F.3d 1168, 1197 (2008), cert. denied 129 S. Ct. 1002 (2009) (a veteran must have been physically present on the landmass or inland waters of the Republic of Vietnam at some point during his service in order to establish qualifying service in Vietnam for presumption of herbicide exposure). Turning to the other evidence of record, the Veteran's service treatment records do not demonstrate any evidence of any peripheral neuropathy of either his upper or lower extremities during military service or at discharge therefrom; his March 1970 separation examination revealed the Veteran's upper and lower extremities, as well as his neurological condition, as normal. The first evidence of any neurological complaints by the Veteran is in 2004; the Veteran sought treatment related to his back at that time with VA and indicated that he had radiating pain to his left thigh at that time. In an October 2004 VA electromyogram (EMG), however, there was no evidence of lumbar radiculopathy or any peripheral neuropathy of his lower extremities. In a July 2005 VA treatment, the Veteran was again seen for back pain with radiation to his left thigh; he was diagnosed with lumbar pain with questionable radiculopathy at that time. An August 2005 lumbar spine Magnetic Resonating Imaging (MRI) scan showed a L4-5 right disc bulge. The Veteran underwent a VA general medical examination in November 2005, at which time he was diagnosed with lumbosacral degenerative spondylosis joint disease with left sciatic compression. A December 2005 VA EMG revealed left tibial motor neuropathy. Finally, an August 2012 VA EMG of the left lower extremity did not disclose any evidence of left lower extremity radiculopathy or any compelling evidence of polyneuropathy of the bilateral lower extremities at that time. The Board has reviewed the intervening and subsequent VA and private treatment records associated with the claims file through May 2017. Generally, the Veteran's VA treatment records demonstrate continued complaints of radicular symptoms associated with his lumbar spine pain, including complaints of bilateral thigh pain and symptoms. Of note, the Board cannot find any evidence of any neurological complaints with respect to his bilateral upper extremities in any of his VA or private treatment records. The Veteran additionally submitted an April 2006 letter from Dr. R.L.M., in which Dr. R.L.M. noted that the Veteran had a L4-5 disc bulge per his MRI scan and that he had back pain and lumbar radiculopathy that began in military service as a result of lifting activities. Dr. R.L.M. additionally noted that the Veteran had lumbar spine disease with lumbar radiculopathy, reported as bilateral thigh pain radiating from his back, in a January 2007 letter; Dr. R.L.M. again related the Veteran's lumbar spine disability to his military service in that letter. Dr. R.L.M.'s letters clearly stated that his opinions were based solely on the Veteran's reports of medical history. Finally, the Board remanded this case for a VA examination in February 2017; such was accomplished in March 2017. During the March 2017 VA neurologic examination, the Veteran was diagnosed with right lumbar radiculopathy. The Veteran denied any history of diabetes during that examination; he further indicated that his back and radicular pain began during military service, although the examiner noted that the Veteran was a poor historian and could not be more specific. With respect to current symptomatology, the Veteran reported no numbness, tingling, or pain of his bilateral upper extremities; the only complaint with regards to his bilateral upper extremities was a report of left arm weakness when lifting overhead which began following his left total shoulder arthroplasty in December 2015. With respect to his lower extremities, the Veteran reported bilateral numbness of his thighs with a lot of walking; he could not state when such began. He also reported that his left leg falls asleep when he gets up from bed too fast; he also could not provide more specific dates of onset as to that complaint. On examination, the Veteran's muscle strength testing of the bilateral upper and lower extremities was normal, with the exception of the left shoulder. There was no notation of any muscle atrophy. He had slightly decreased reflexes in all aspects. His sensation was intact to light touch bilaterally and there was a mild decreased hair growth in his mid-lower legs distally noted on examination. His gait was normal, and he had negative Phalen and Tinel signs bilaterally. The examiner noted that the Veteran had no symptoms of peripheral neuropathy in his bilateral upper extremities, and that based on his last MRI in 2011, the Veteran would have involvement of the right sciatic nerve. With regards to diagnostic testing, the examiner noted that he had multiple EMGs done, the most recent being in August 2012. Based on that August 2012 EMG, it was revealed that the Veteran did not have left lumbosacral radiculopathy and there was no compelling evidence of polyneuropathy in the lower extremities. The examiner additionally noted an EMG in December 2005 and in October 2004. The examiner finally noted that a 2011 MRI scan. After examination of the Veteran and review of the claims file, the March 2017 VA examiner provided the following opinion: [The] Veteran does not complain of any symptoms of peripheral neuropathy in his upper extremities. In his lower extremities he complains of numbness in his thighs when he walks bilaterally and intermittent numbness in his entire left leg when he gets up too fast. The most recent EMG showed no evidence of peripheral neuropathy. It also showed no evidence of left-sided radiculopathy. MRI done [in] 2011 does show a possible cause for his right-sided symptoms, i.e., moderate right neural foraminal narrowing and impression upon the right lateral recess. Thus it is at least as likely as not that the [V]eteran has a radiculopathy secondary to his lumbar disk disease. Veteran is unsure if he even has exposure to herbicides. Thus I would state based on his MRI is at least as likely as not that his right-sided symptoms are secondary to radiculopathy. Based on most recent EMG it is less likely as not that his symptoms are secondary to peripheral neuropathy. Based on the foregoing evidence, the Board must deny service connection for bilateral upper and lower extremity peripheral neuropathy at this time. Initially, with respect to the Veteran's bilateral upper extremity peripheral neuropathy, the Board finds that there is no current disability on which to base a claim of service connection in this case. Specifically, after a review of the private and VA treatment records associated with the claims file, as well as the March 2017 VA examination, there is no evidence of record demonstrating that the Veteran has any current diagnosis of any neurological condition of his bilateral upper extremities. In fact, the Veteran specifically denied during his March 2017 examination that he had ever been treated for or diagnosed with any neurological disorder of the bilateral upper extremities. Although the Veteran's complaints of weakness of the left arm were noted, the examiner associated those complaints with a left total shoulder arthroplasty; the Veteran's left shoulder problems are not service connected at this time. Consequently, as there are no current neurological disabilities of the bilateral upper extremities, the Board must deny service connection based on the evidence of record at this time. See 38 C.F.R. §§ 3.102, 3.303, 3.310; McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim."); Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability). Turning to the claim for the bilateral lower extremities, as noted above, the Board must also deny service connection for a neurological disorder of the left lower extremity at this time, as the evidence also does not demonstrate any diagnosis of any left lower extremity neurological condition throughout the appeal period. There is no evidence that the Veteran current disability attributed as left lower extremity peripheral neuropathy in the most recent VA examination. Consequently, the Board must also deny service connection for left lower extremity peripheral neuropathy at this time on the same basis as the bilateral upper extremity neurological claims. See Id. Nevertheless, although the Veteran clearly has a current neurological disability of the right lower extremity, and even if the Board were to assume that there is a neurological condition of the left lower extremity in this case, the Board must deny service connection for bilateral neurological disorders of the lower extremities based on the evidence of record in this case. Insofar as the Veteran has specifically stated that he had neurological symptoms beginning during active service, the Board finds those statements are outweighed by other evidence of record. There is no evidence of any neurological complaints during military service. The Veteran did report for treatment for other conditions such as an earache, fever, nausea, vomiting, and diarrhea, and eye pain. If he suffered from peripheral neuropathy during service it is reasonable to assume that he would have sought treatment for it as he sought treatment for these other symptoms. Moreover, his neurologic system, upper and lower extremities were all found to be normal on examination at separation from service, if the Veteran had symptoms at that time it is reasonable to expect that there would be at least some notation of such. Additionally he did not make any complaints of neuropathy until many years after separation from service. This evidence is more probative than the Veteran's statements that his symptoms began during active service. Moreover, the Board finds the lack of specificity of the Veteran's statements with regards to onset of symptomatology to be less probative than contemporaneous evidence that demonstrates a lack of such complaints during military service, particularly during his separation examination in March 1970. Furthermore, in all of the evidence of record, the Veteran's statements all indicate that his neurological symptoms began in conjunction with and as a result of his lumbar spine disability. Consequently, insofar as the Veteran has stated that his neurological symptoms began in service, the Board cannot find those statements to be credible in this case, and the Board must deny service connection on that direct basis at this time. Turning to the herbicide contentions, the Board notes that there is no evidence of any peripheral neuropathy of the lower extremities during military service or within one year of discharge from military service; thus, presumptive service connection in this case cannot be awarded. See 38 C.F.R. §§ 3.307, 3.309. Even though the Veteran is presumed to be exposed to herbicides in this case, the Veteran has not provided any evidence aside from his lay contentions that his neuropathy disability is related to military service. Such evidence is not competent, as the Veteran does not have the medical expertise to render such an opinion in this case. 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); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Although the Board acknowledges that the March 2017 VA examiner was requested to provide such an opinion and did not, the Board finds that a remand for such an opinion is not necessary in light of the March 2017 examiner's opinion. Specifically, the March 2017 examiner clearly opined that the Veteran's neurological condition of the lower extremity stemmed from his lumbar spine disorder; the examiner clearly attributed the noted neurological symptoms on examination to lumbar radiculopathy. Such an opinion implicitly, therefore, denies any relationship of the current neurological condition to herbicides and in favor of finding a definitive relationship with the Veteran's lumbar spine disorder. Such an opinion is clearly widely-held throughout the record by a multiple of different doctors, both VA and private. The Board reflects that the Veteran is not currently service-connected for any lumbar spine disability. In fact, VA, in general, and the Board, specifically, have denied service connection for any lumbar spine disability in the past, although as noted above, the Veteran has recently requested to reopen that claim for service connection. Likewise, although the Veteran has raised an association of his neuropathy with diabetes mellitus, particularly in his informal hearing conference with a Decision Review Officer (DRO) in June 2010, the Veteran's private and VA treatment records do not disclose any diagnosis of diabetes mellitus, type II. In conclusion, service connection on a direct basis to military service, to include manifestation during service or as related to herbicide exposure therein, and on a presumptive basis must be denied at this time based on the evidence of record. Finally, although the Veteran has raised secondary service connection to either diabetes or lumbar spine disorders, at this time, those disorders are not service-connected disabilities on which claims of service connection can be predicated. Accordingly, service connection for bilateral lower extremity peripheral neuropathy must also be denied at this time. See 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral upper extremity peripheral neuropathy is denied. Service connection for bilateral lower extremity peripheral neuropathy is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs