Citation Nr: 18140858 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 13-07 181 DATE: ORDER Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is denied. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. Entitlement to compensation under the provisions of 28 U.S.C. § 1151 for a right shoulder disability is denied. Entitlement to compensation under the provisions of 28 U.S.C. § 1151 for a bilateral hand disability is denied. Entitlement to compensation under the provisions of 28 U.S.C. § 1151 for a disability of the bilateral lower extremities is denied. FINDINGS OF FACT 1. The Veteran is not shown to have manifested complaints or findings referable to peripheral neuropathy of the upper extremities in service or for many years thereafter; peripheral neuropathy is not shown to be due to an event or incident of the Veteran’s period of active service, including his presumed exposure to Agent Orange while serving in the Republic of Vietnam. 2. The Veteran is not shown to have manifested complaints or findings referable to peripheral neuropathy of the lower extremities in service or for many years thereafter; peripheral neuropathy is not shown to be due to an event or incident of the Veteran’s period of active service, including his presumed exposure to Agent Orange while serving in the Republic of Vietnam. 3. The Veteran is not shown to have manifested complaints or findings referable to COPD in service or for many years thereafter; COPD is not shown to be due to an event or incident of the Veteran’s period of active service, including his presumed exposure to Agent Orange while serving in the Republic of Vietnam. 4. The evidence fails to show that the Veteran developed additional disability of the right shoulder that was caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable. 5. The evidence fails to show that the Veteran developed additional disability of the bilateral upper extremities and/or hands that was caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable. 6. The evidence fails to show that the Veteran developed additional disability of the bilateral lower extremities that was caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the upper extremities are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for peripheral neuropathy of the lower extremities are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for COPD are not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for compensation under 38 U.S.C. § 1151 for a right shoulder disability related to VA treatment are not been met. 38 U.S.C. §§ 1151, 5103, 5107; 38 C.F.R. § 3.361. 5. The criteria for compensation under 38 U.S.C. § 1151 for a bilateral hand disability related to VA treatment have not been met. 38 U.S.C. §§ 1151, 5103, 5107; 38 C.F.R. § 3.361. 6. The criteria for compensation under 38 U.S.C. § 1151 for a disability of the bilateral lower extremities related to VA treatment have not been met. 38 U.S.C. §§ 1151, 5103, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1968 to August 1971. This case was previously remanded by Board in February 2017 for additional development. The Board notes that the appeal had also originally included the issue of compensation under the provisions of 28 U.S.C. § 1151 for a left shoulder disability. However, during the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) granted that claim in a November 2017 rating decision. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). To the extent the Veteran has submitted a notice of disagreement with the effective date assigned, that matter is not in appellate status. Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). It is worthwhile to note that the Veteran is in receipt of a total disability rating based on individual unemployability throughout the pendency of this appeal, and he has been granted a 100 percent disability evaluation from the VA, effective September 30, 2011. The Veteran and his representative may wish to consider this fact prior to filing or appealing any additional claims. In any event, the Board will address fully the claims the Veteran has submitted. Service Connection Service connection may be established 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. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including arthritis and an organic disease of the nervous system, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. 3.303 (b). To be “shown in service,” the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. 3.303 (b). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. A veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. Because the Veteran in this case served in Vietnam, exposure to herbicides in conceded. If a veteran was exposed to a herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309 (e). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113 (b) and 1116 and 38 C.F.R. § 3.303. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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 shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities 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 because of his service in Vietnam. 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 August 1971 separation examination revealed the Veteran’s upper and lower extremities, as well as his neurological condition, as normal. The first evidence in medical records of neuropathy comes many years after service. A 1995 EMG study revealed left cervical radiculopathy or peripheral nerve lesion in left upper extremity. Subsequent treatment records, including in 2005, documented an assessment of cervical spondylosis with upper extremity radiculopathy manifested by symptoms of numbness, weakness and sensory changes, as well as bilateral hand neuropathy. A November 2009 VA examination report recorded findings of degenerative disc disease of the cervical spine with bilateral upper extremity radiculopathy. Electrodiagnostic studies in April 2010 noted neuropathy involving the hands and ulnar nerves. The clinician determined that the Veteran’s neuropathy was idiopathic in nature, as opposed to neuropathy due to trauma. The medical evidence documented peripheral neuropathy of the lower extremities in 2011. A VA examiner in April 2017 recorded diagnoses of left carpal tunnel syndrome and cervical radiculopathy left upper extremity, along with rachial neuritis and polyneuropathy of the upper and lower extremities, diagnosed in 2014. The records do not show a nexus to service, to include his presumed exposure to Agent Orange. See Combee, supra. The Veteran’s contention is that he has peripheral neuropathy related to Agent Orange exposure. His neuropathy did not have onset until many years after service and the evidence is against presumptive service connection based on Agent Orange exposure. Whether a disease is caused by exposure to chemicals is a complex question well known to be the type of question subject to extensive research by medical professionals. The Veteran has not demonstrated expertise in such matters and his nexus assertion is not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). For these reasons, the Board concludes that the preponderance of evidence is against granting service connection for peripheral neuropathy of any extremity. Hence, the appeal must be denied. There is no reasonable doubt to be resolved. 38 U.S.C. § 5107 (b); See Gilbert, 1 Vet. App. at 54. VA has no duty to provide examination concerning the claims for service connection for peripheral neuropathy of the bilateral upper and lower extremities because the evidence does not show an inservice injury, disease, or event related to peripheral neuropathy and the Veteran does not have early onset peripheral neuropathy or peripheral neuropathy that manifested during a presumptive period. Therefore, a VA examination or opinion is not necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). 3. Entitlement to service connection for COPD The Veteran seeks service connection for COPD as due herbicide exposure during his service in Vietnam. Service treatment records are negative for diagnosis or notations of COPD, including upon an August 1971 discharge examination report. The discharge examination showed the Veteran’s lungs and chest were within normal limits. A current diagnosis of COPD is shown in the medical treatment records, along with a history of tobacco smoking. Although a current diagnosis has been established, there is no evidence of this condition in service or shortly thereafter, and no competent and probative evidence linking the current COPD to service. See 38 C.F.R. § 3.303 (a), 3.303(d). However, the Veteran has asserted that his COPD is related to his presumed herbicide exposure. The Board notes that he cannot avail himself of the presumption of service connection for COPD based on exposure to Agent Orange. The presumption is not warranted because COPD is not one of the chronic diseases listed under 38 C.F.R. § 3.309 (e), as being associated with exposure to Agent Orange. VA has determined that presumption of service connection based on exposure to Agent Orange is not warranted for any condition other than those conditions found to have a positive association between the condition and exposure to Agent Orange. In addition, there is no competent opinion relating any claimed disability to exposure to Agent Orange. See Combee, supra. While the Veteran is competent to report symptomatology (such as shortness of breath) he does not have the requisite medical expertise to provide a link between a current COPD and service. Indeed, a Veteran is competent to report observable symptoms, because this requires only personal knowledge, not medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). To the extent that the Veteran claims his current COPD is related to service, to include his presumed exposure to Agent Orange, as a layperson, he is not competent to offer an opinion regarding the etiology of a pulmonary disorder (such as COPD), where there is an absence of a chronic in-service disease or even a factual basis of symptoms in service or for many years after service. See Jandreau, 492 F.3d at 1377. The Veteran has not been afforded with a medical examination in connection with his claim. However, in the absence of any competent, credible evidence of a possible association with service, VA is not required to further develop the claim by affording the Veteran a VA examination or by obtaining a medical opinion. He has not reported that COPD symptoms had onset during service or and there is no indication that COPD may otherwise be related to service. Therefore, a VA examination or opinion is not necessary. See McLendon, 20 Vet. App. at 83; Waters, 601 F.3d at 1278-79 As the preponderance of the evidence is against the claim; the benefit of doubt doctrine is not for application. Service connection is not warranted. 38 U.S.C. § 5107 (b); See Gilbert, 1 Vet. App. at 54. 1151 Eligibility 3. Entitlement to compensation under the provisions of 28 U.S.C. § 1151 for a right shoulder disability 4. Entitlement to compensation under the provisions of 28 U.S.C. § 1151 for a disability of the bilateral lower extremities 5. Entitlement to compensation under the provisions of 28 U.S.C. § 1151 for a bilateral hand disability The Veteran contends that due to VA surgeries on February 18, 2003, and August 23, 2010, his right shoulder disability was made worse and he now has nerve disabilities of the bilateral hands and lower extremities. The evidence shows that the Veteran underwent cervical spine surgery in August 2010 and left rotator cuff repair in February 2003. The law provides that compensation may be paid for a qualifying additional disability or qualifying death, not the result of the veteran’s willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the veteran when the proximate cause of the disability or death was: (a) carelessness, negligence, lack of proper skill, error in judgment, or other instances of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. 38 U.S.C. § 1151. The regulations provide that benefits under 38 U.S.C. § 1151 (a), for additional disability or death due to hospital care, medical or surgical treatment, examination, training and rehabilitation services, what is required is actual causation, not the result of continuance or the natural progress of a disease or injury for which the care, treatment, or examination was furnished, unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. The additional disability or death must not have been due to the failure to follow medical instructions. 38 C.F.R. § 3.361. To determine whether a veteran has an additional disability, VA compares the veteran’s condition immediately before the beginning of the medical treatment upon which the claim is based to his or her condition after such treatment has stopped. 38 C.F.R. § 3.361 (b). To establish that VA treatment caused additional disability, the evidence must show that the medical treatment resulted in the additional disability. Merely showing that a veteran received treatment and that the veteran has an additional disability, however, does not establish cause. 38 C.F.R. § 3.361 (c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical treatment proximately caused a veteran’s additional disability, it must be shown that the medical treatment caused the veteran’s additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran’s or, in appropriate cases, the veteran’s representative’s informed consent. 38 C.F.R. § 3.361 (d) & (d)(1). Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32 (b). 38 C.F.R. § 3.361 (d)(1)(ii). Whether the proximate cause of a veteran’s additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32 of this chapter. 38 C.F.R. § 3.361 (d)(2). VA treatment records show a diagnosis of bilateral shoulder tendonitis in 1995. On VA examination in November 2009 it was noted that the Veteran injured his shoulders at work while employed as a welder. He had undergone four unsuccessful surgical repairs. The examiner also noted numbness in both arms associated with degenerative disc disease of the cervical spine. The examiner diagnosed rotator cuff tear with severe atrophy of both shoulder girdles and limited function, along with degenerative disc disease of the cervical spine with bilateral upper extremity radiculopathy. A private clinical treatment note in March 2014 showed complaints of upper extremity weakness. The clinician noted mild cervical stenosis which was not contributing to his symptoms, and which the clinician attributed to his massive chronic left rotator cuff tear. The clinician reported being unable to find a medical explanation for the Veteran’s bilateral upper extremity symptoms, other than some gliosis of his spinal cord, which could be related to residuals of spinal cord compression that he had prior to cervical laminectomy. On VA examination in April 2017 the examiner diagnosed mild left-hand weakness secondary to mild carpal tunnel and probable mild C7 radiculopathy, diagnosed in 2014. The examiner also diagnosed polyneuropathy of the upper and lower extremities. Concerning the right shoulder, the examiner noted rotator cuff tear that had onset in the 1980’s, at which time he underwent rotator cuff repair. The Veteran stated that he had increasing problems with right shoulder due to overuse as a result of his left shoulder disability. In an addendum opinion report in September 2017, following an examination of the Veteran and a review of the claims file, a VA physician concluded that there was no additional disability of the right shoulder, bilateral hands, bilateral upper extremities or bilateral lower extremities, as a result of the February 18, 2003 and/or August 23, 2010 VA surgeries. Concerning the claimed right shoulder disability, the examiner concluded that the current right shoulder disability, as it existed at the time of the examination, was caused by the original workers’ compensation injury in the 1980’s and treatment related to the original injury, as opposed to the VA surgical treatment in 2003 or 2010. Pertaining to the claimed disability affecting the bilateral upper and lower extremity disability, including the hands, the examiner identified the condition as peripheral neuropathy, and opined that the disorder was associated with the Veteran’s cervical spine myelopathy and was not caused or aggravated by the VA surgical procedures, including the August 23, 2010, posterior cervical decompression, to bilateral decompressive cervical laminectomy, C3-5. Notably, both the VA examiner and the March 2014 private clinician concluded that the Veteran’s bilateral upper extremity symptoms were consistent with symptoms preceding the VA surgical treatment and did not attributable any such condition to it. Finally, regarding the claimed disability of the bilateral lower extremities, the examiner attributed the condition to chronic long-standing back problems, not the result of, or proximately due to the VA surgical procedures. In this case, based upon the above VA examination opinions and review of the record, the Board finds that preponderance of the evidence weighs against a finding that the Veteran suffers from an additional disability of the right shoulder, bilateral hands, bilateral upper extremities or bilateral lower extremities, as a result of VA surgical treatment. The Board acknowledges the Veteran’s assertion that he suffers from disabilities affecting the right shoulder, bilateral hands, bilateral upper extremities and bilateral lower extremities, due to treatment received as the VA. The Board acknowledges that the Veteran is competent to describe symptoms capable of lay observation. See Jandreau, 492 F.3d at 1377; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). He is not competent, however, to offer a medical diagnosis or etiological opinion in this case. Simply stated, he can not state that his problem is the result of the post-service injury, or the surgery that (the Veteran contends) was unsuccessfully done by VA to attempt to fix the problem (unfortunately, surgeries do no always cure the problem, but this does not suggest, in and of themselves, that the surgery caused an additional problem, or simply the underlining issue became worse). In that regard, the Board finds that his statements are outweighed by the September 2017 VA examiner’s opinion that there is no additional disability stemming from treatment received at the VA, for the reasons explained above. Given the Board’s finding that the Veteran does not suffer from an additional disability related to the described incident, the claims for compensation under 38 U.S.C. § 1151 cannot prevail, and therefore must be denied. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Azizi-Barcelo, Tatiana