Citation Nr: 18146270 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 15-01 473 DATE: October 31, 2018 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for hypertension, to include as secondary to service-connected disability, is denied. Entitlement to service connection for peripheral neuropathy of right upper extremity, to include as secondary to service-connected disability, is denied. Entitlement to service connection for peripheral neuropathy of left upper extremity, to include as secondary to service-connected disability, is denied. Entitlement to service connection for peripheral neuropathy of right lower extremity, to include as secondary to service-connected disability, is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to service-connected disability, is denied. FINDINGS OF FACT 1. The earliest evidence of tinnitus is not for several decades after separation from service, and the preponderance of the evidence is against a finding that tinnitus is related to service. 2. There is not competent credible evidence of a diagnosis of peripheral neuropathy of the upper and/or lower extremities. 3. The most probative evidence of record is against a finding that hypertension began in service, was manifested within the first year following separation, or is otherwise related to service, including herbicide exposure, or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for peripheral neuropathy of right upper extremity have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for entitlement to service connection for peripheral neuropathy of left upper extremity have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 5. The criteria for entitlement to service connection for peripheral neuropathy of right lower extremity have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 6. The criteria for entitlement to service connection for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1964 to March 1966. These matters come before the Board of Veterans’ Appeals (Board) from a July 2012 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. In September 2015, the Veteran testified at a Central Office Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. These matters were most recently before the Board in July 2017 when they were remanded for further development. The Board finds that there has been substantial compliance with the directives of its remand. The Veteran was scheduled for a VA examination for his peripheral neuropathy to which he failed to appear without good cause; and he was requested to supply evidence, which he failed to do; thus, the Board will adjudicate the claims based on the evidence of record. The Board notes that the Veteran has been requested on numerous occasions to submit evidence in support of his claims (see October 2011, April 2012, July 2012, and April 2018 correspondence). The duty to assist is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Service Connection Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases, to include organic diseases of the nervous system and hypertension, listed in 38 C.F.R. § 3.309(a), that manifest to a degree of 10 percent within one year of service separation. Id. §§ 3.303(b), 3.307. Service connection may be awarded on the basis of continuity of symptomatology for those conditions listed in 38 C.F.R. § 3.309(a) if a claimant demonstrates (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303(b). The Veteran served in the Republic of Vietnam during the Vietnam Era, and he is presumed to have been exposed to herbicide agents. See 38 C.F.R. §3.307(a)(6)(iii). Service connection may be awarded on a presumptive basis for certain chronic diseases based on herbicide exposure, to include early-onset peripheral neuropathy, listed in 38 C.F.R. § 3.309(e). Id. §§ 3.303(b), 3.307. Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. 1. Entitlement to service connection for tinnitus The Veteran avers that he has tinnitus due to noise exposure in service. The Veteran is competent to report that he has tinnitus (ringing of the ears). The Veteran’s service treatment records (STRs) are negative for any complaints of tinnitus. He denied ear trouble on in-service Reports of Medical History in September 1964 (for airborne training), June 1965 (for an area with limited medical facilities), and February 1966 (for separation purposes), and he reported on all those occasions that his health was excellent. The earliest evidence of complaints of tinnitus is not until 2011, more than four decades after separation from service (see March 2011 VA Form 21-4138). The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). A June 2012 VA examination report with addendum reflects the opinion of the examiner that it is less likely as not that the Veteran has tinnitus causally related to service. The clinician considered that the Veteran had noise exposure in service (exposure to artillery, small arms fire, and machine guns) but still provided a negative nexus opinion. The clinician’s opinion was based on the fact that the Veteran could not recall any particular event of onset of tinnitus, and the STRs are negative for any mention of tinnitus. The Board notes that there is no competent credible evidence of tinnitus in service. At the 2015 Board hearing, the Veteran testified that he could not remember when he first started noticing ringing in his ears but it has been a long time. His representative stated that the Veteran had a clinical statement from Dr. K. Donnelly with regard to the Veteran’s tinnitus; however, the statement is not of record, and the Veteran has not produced this statement pursuant to a 2018 request for it. The connection between what a physician said and the layman’s account of what he purportedly said, filtered as it was through a layman’s sensibilities, is simply too attenuated and inherently unreliable to constitute ‘medical’ evidence.” Robinette v. Brown, 8 Vet. App. 69, 77 (1995). To the extent the Veteran asserts continuity of symptoms since service, such statements are less than credible as they are inconsistent with his statements in 2012 and 2015. Any opinion as to causation which is based on continuity of symptoms of tinnitus since service lacks significant probative value. The Veteran may sincerely believe that he has tinnitus causally related to active service. However, he has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of auditory disabilities such as tinnitus, and the effects of age and noise on tinnitus. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In the absence of demonstration of continuity of symptomatology, or a competent clinical opinion relating the current tinnitus to service, the Veteran’s initial complaint/demonstration is too remote from service to be reasonably related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and service connection is not warranted. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected disability. The Board has considered three avenues for the Veteran to achieve service connection (i.e. secondary, direct presumptive, and direct non-presumptive) but finds that the most probative evidence is against a finding that service connection is warranted. The Veteran stated at the 2012 VA examination that he has been on medication for hypertension since approximately 1982. He further stated that his “blood pressure has always been under good control, he is compliant with his medication and he has no blood pressure related complaints at this time.” He is in receipt of service connection for diabetes and contends that there is a relationship between the two disabilities. The Veteran contends that even though his diabetes was not diagnosed until 2011, it may have predated his hypertension, which was diagnosed in approximately 1982. In essence, he contends that it is possible that he had diabetes for three decades without it ever being diagnosed and that it caused his hypertension. He also contends that he was diagnosed with borderline diabetes in at least 1988. (See Board hearing transcript, page 12.) The Veteran is not competent to provide such an etiology or to assess onset of diabetes three decades prior to diagnosis as such opinions require medical expertise. The 2012 VA examiner opined that it is less likely as not that the Veteran’s diabetes caused or aggravated the Veteran’s hypertension; this opinion was based on the Veteran’s good control of his diabetes, and the onset of his diabetes, and the onset of his hypertension. An August 2018 clinical report reflects the opinion of the clinician that the Veteran’s assertion of diabetes prior to hypertension is without merit, and the Veteran’s blood pressure is well controlled; therefore, it has not been aggravated by his diabetes, which came many years after his hypertension. The Veteran had service in Vietnam for eight months during the Vietnam war. Thus, he is presumed to have been exposed to some types of herbicides. Under current VA regulations, hypertension is not a disability which warrants presumptive service connection due to exposure to herbicides. In a 2010 update, the National Academy of Sciences (NAS) concluded that there was “limited or suggestive evidence of an association” hypertension and herbicide exposure. The Federal Register reflects that relatively few of the positive findings were statistically significant and the findings overall are limited by the inconsistency of the results, the lack of controls, and other methodology concerns. 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). The August 2018 clinician opined that herbicide exposure is not known to initiate essential hypertension, and that essential hypertension is an extremely common condition in the general population that does not have exposure to an herbicide agent. (The Veteran had risk factors of advancing age and being over-weight). The clinician also noted, with regard to the above cited references, that they are not conclusive or persuasive that the Veteran’s hypertension is causally related to herbicide agent exposure. Thus, the most competent credible evidence (i.e. the clinical opinion based on this particular Veteran) is against a finding that service connection is warranted as due to herbicide agent exposure. Finally, the Board has considered the Veteran’s STRs. The Veteran’s 1964 pre-induction Report of Medical Examination reflects his blood pressure was 140/90. Upon separation from service in 1966, it was 131/86; thus, it was lower than prior to service. The Veteran’s February 1966 Report of Medical History for Separation purposes reflects that he denied high blood pressure. There is also no competent credible evidence that hypertension manifested to a compensable degree within one year of separation from service or that the Veteran experienced continuous symptoms since service. In sum, service connection for hypertension is not warranted because the most probative evidence of record is against a finding that it is causally related to, or aggravated by, a service-connected disability, or causally related to, or aggravated by, service, including herbicide exposure, or that it manifested to a compensable degree within a year of separation from service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.   3. - 6. Entitlement to service connection for peripheral neuropathy of the right upper extremity, left upper extremity, right lower extremity, and left lower extremity. The Veteran is in receipt of service connection for diabetes mellitus. He contends that he has bilateral upper and lower extremity peripheral neuropathy, to include as secondary to diabetes mellitus. The Veteran underwent a VA examination in June 2012. At that time, he denied any peripheral neuropathy symptoms and conditions. Upon examination, he had normal strength, normal deep tendon reflexes, normal light touch/monofilament testing, normal position sense, normal vibration sensation, and normal cold sensation of all tested extremities. At the 2015 Board hearing, the Veteran testified that he began experiencing peripheral neuropathy within approximately six months after leaving service but that he did not seek treatment for it. He testified that he gets tingling in the feet and hands, and numbness in the upper right leg which is so severe that “you could probably practically stick a pin [in] my leg and I wouldn’t feel a thing.” (See Board hearing transcript, pages 15 and 16.) He testified that he has never talked to a doctor about his symptoms. The Veteran is competent to state that he now experiences symptoms; however, any contention of chronic symptoms since shortly after leaving service (i.e. six months) is less than credible given the 2012 VA examination findings and the Veteran’s denial of symptoms at that time. The Board also notes that VA clinical records which note the Veteran’s chronic medical problems and prior medical history do not list peripheral neuropathy. In addition, VA records in 2017 reflect that the Veteran reported that he bowls and/or golfs three times a week except for a recent biceps tear. The Board finds that if the Veteran had symptoms such as he described at the Board hearing, it would have been reasonable for him to have sought treatment. While the Veteran may believe that he has peripheral neuropathy, he has not been shown to have the training and/or education necessary to provide a competent diagnosis in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board finds that the Veteran’s statement as to a diagnosis of peripheral neuropathy lacks significant probative weight. The Board concludes that the Veteran does not have a current diagnosis of peripheral neuropathy, including early onset peripheral neuropathy, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). There is also no evidence of record that the Veteran’s reported symptoms rise to the level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Wishard