Citation Nr: 18146897 Decision Date: 11/02/18 Archive Date: 11/01/18 DOCKET NO. 18-29 913 DATE: November 2, 2018 ORDER Entitlement to service connection for a neurological disorder of the right upper extremity, to include peripheral neuropathy, is denied. Entitlement to service connection for service connection for a neurological disorder of the right lower extremity, to include peripheral neuropathy, is denied. Entitlement to service connection for service connection for a neurological disorder of the left lower extremity, to include peripheral neuropathy, is denied. REMANDED Entitlement to service connection a neurological disorder of the left upper extremity, to include carpel tunnel syndrome of the left upper extremity, is remanded. FINDINGS OF FACT 1. The evidence of record does not demonstrate that the Veteran has a current neurological disability of the left lower extremity. 2. The Veteran’s right-sided hemiparesis/hemisensory deficit, including any neurological deficit of the right upper and lower extremities, is not shown to be related to military service, but to his two cerebrovascular accidents (strokes) that occurred many years after military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a neurological disorder of the right upper extremity, to include peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a neurological disorder of the right lower extremity, to include peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a neurological disorder of the left lower extremity, to include peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to June 1967, with noted service in the Republic of Vietnam from May 1966 to June 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that after the AOJ’s last adjudication of the claims and after certification of the appeal to the Board, updated VA treatment records, have been associated with the record, but has not been considered by the RO in conjunction with the current appeal. Here, the updated records do not pertain to the claim for service connection for peripheral neuropathy of the upper right extremity and bilateral lower extremities; therefore, a waiver is not necessary. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. 112-154, § 501, 126 Stat. 1165, 1190 (Camp Lejeune Act); 38 C.F.R. § 20.1304. 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, 1131; 38 C.F.R. § 3.303(a). “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). Certain chronic diseases, including peripheral neuropathy (an organic disease of the nervous system), may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). 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). 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). The Veteran contends that he had peripheral neuropathy of the upper right extremity and the bilateral lower extremities due to Agent Orange exposure. Turning to the evidence of record, the Veteran service treatment records do not demonstrate any complaints of, treatment for, or diagnosis of any neurological problems of his right upper or bilateral lower extremities. The Board reflects that he was noted to have normal upper and lower extremities in his June 1967 separation examination; the Veteran also denied any neuritis or paralysis at that time on his report of medical history. Other military reserve records, including a January 1988 examination, also noted normal upper and lower extremities; the Veteran also denied any neuritis or paralysis at that time on his report of medical history. Post-service evidence demonstrates that in May and October 2000 private treatment records and a November 2000 VA examination report reflect the Veteran suffered two cerebrovascular accidents (strokes) in April and May 2000 with right residual hemiparesis or “status post [cerebrovascular accident] with residual right hemisensory deficit.” The Veteran filed his claim for service connection for neuropathy of the right upper and bilateral lower extremities in May 2015. An October 2015 VA examination report reflects the Veteran had carpel tunnel syndrome of the upper left arm. The examiner indicated that the Veteran’s reported symptoms that can be attributable to peripheral neuropathy started about ten years ago, far removed from release date from active service, thus a nexus of casualty cannot be established with the Agent Orange exposure. The examiner explained there are no findings to substantiate a diagnosis of generalized peripheral neuropathy, except for the left carpal tunnel syndrome found today, not related to AO exposure. The examiner also noted the Veteran’s report of pain and numbness, but determined that his complaints did not cause any functional impairment. The Board has additionally reviewed the Veteran’s VA treatment records from throughout the appeal period. Those records demonstrate continued notation of a diagnosis of cerebrovascular accident with residual right hemiparesis. Significantly, in a December 2016 VA treatment record, the Veteran was noted to have a cerebrovascular accident with residual right hemiparesis, although the examiner at that time noted that there were “no new neurological deficits.” Based on the foregoing evidence, the Board finds that service connection for neurological disorders of the right upper and bilateral lower extremities must be denied. First, with respect to the left lower extremity, the Board finds that the evidence noted above does not demonstrate any current neurological disability of the left lower extremity. The Board acknowledges the Veteran’s statements that he has peripheral neuropathy, as well as his competent complaints of symptoms during the October 2015 examination. However, the Veteran is not competent to render a diagnosis in this case, as he lacks the requisite medical knowledge and expertise. 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). The Board notes that the Veteran’s VA treatment records do not demonstrate any treatment for a neurological disorder or deficit of the left lower extremity. Moreover, the October 2015 VA examiner contemplated the Veteran’s complaints with regards to symptomatology, notably moderate intermittent pain in the left lower extremity and nocturnal cramping of the legs; however, based on examination of the Veteran at that time and review of the claims file, the examiner indicated that the Veteran did not have any neurological disability or deficit of the left lower extremity. The Board notes that the October 2015 examiner’s findings are the most probative evidence of record in this case, and such findings are not refuted by any other evidence of record. Accordingly, as the evidence does not demonstrate that the Veteran has a current neurological disability of the left lower extremity, the Board must deny service connection for a neurological disorder, to include peripheral neuropathy, of the left lower extremity at this time. See 38 C.F.R. §§ 3.102, 3.303; 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 right upper and lower extremities in this case, the Board acknowledges that the October 2015 VA examiner found that the Veteran did not have any neurological disability or deficit with regards to his right upper and lower extremities. However, the other evidence of record demonstrates that the Veteran is shown to have right-sided hemiparesis or hemisensory deficit throughout the appeal period. Thus, by resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence demonstrates that the Veteran has a neurological disability of the right upper and lower extremities in this case. Initially, the Board reflects that right hemiparesis/hemisensory deficit is not a noted chronic disability or presumptive disease related to herbicide exposure in this case, and therefore the presumptive service connection is not applicable in this case. See 38 C.F.R. §§ 3.307, 3.309(a), (e). Next, the Board reflects that the medical evidence in this case clearly demonstrates that the Veteran’s right hemiparesis/hemisensory deficit is related to and a residual of his two post-service strokes that he suffered in April and May 2000. The Board reflects that there is no evidence of any neurological problems of the right upper and lower extremity during military service or for many years thereafter. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). More importantly, however, the presence of the current right-sided hemiparesis is shown after two clear intervening strokes after his discharge from service. Although the Board is cognizant of the Veteran’s assertions that his neurological disorders are related to his herbicide exposure—and that he is presumed exposed to herbicide exposure as a result of military service due to his service in the Republic of Vietnam—the Board notes that the Veteran is not competent to provide a nexus opinion in this case, as he again lacks the medical knowledge and expertise to do so. See Jandreau, supra. Finally, although the Veteran has raised that avenue of entitlement in this case, the Board reflects that he has not submitted any evidence to show that right hemiparesis/hemisensory deficit—as opposed to peripheral neuropathy of the right upper and lower extremities—any known relationship to herbicide exposure. Although the Board acknowledges that the October 2015 VA examiner did not discuss the relationship between the noted neurological disability of the right upper and lower extremity in this case as to his presumed herbicide exposure during service, the Board finds that the low threshold for obtaining such a medical opinion in this case has not been met. Rather, the medical evidence of record demonstrates that such is related to his two post-service strokes. Aside from his own non-competent assertions, the Veteran has not submitted any evidence to refute such evidence. Consequently, the Board finds that a remand for a medical opinion as to the etiology of the Veteran’s right-sided hemiparesis/hemisensory deficit related to the Veteran’s presumed herbicide exposure is not necessary at this time. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010). In short, although the Veteran has a neurological disability of the right upper and lower extremity in this case, such is shown to be related to his two post-service strokes that occurred many years after his discharge from service. As the evidence of record at this time does not demonstrate a nexus to military service as to the Veteran’s current neurological disorder of the right upper and lower extremities—right-sided hemiparesis/hemisensory deficit—service connection for those disabilities must also be denied at this time based on the evidence of record. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 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); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran has asserted that he has peripheral neuropathy of the upper left extremity that is a result of his exposure to Agent Orange during service. The October 2015 VA examiner indicated that the Veteran’s reported symptoms that can be attributable to peripheral neuropathy started about ten years ago, far removed from release date from active service, thus a nexus of casualty cannot be established with the Agent Orange exposure. The examiner explained there are no findings to substantiate a diagnosis of generalized peripheral neuropathy, except for the left carpal tunnel syndrome found on examination; the examiner stated that it was not related to herbicide exposure during service. The Board finds that the opinion did not provide an adequate rationale as to the etiology of the Veteran’s left arm carpel tunnel syndrome. Accordingly, a remand is necessary in order to obtain an additional medical opinion in this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). On remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992).   The matter is REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the San Juan VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Request an addendum opinion from an appropriate VA examiner to determine the etiology of his carpel tunnel syndrome of the upper left extremity. The need for an additional examination of the Veteran is left to the discretion of the VA examiner(s) providing the opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. Based on review of the record, the examiner should determine whether it is as least as likely as not (50 percent probability or greater) that the carpel tunnel syndrome of the left upper extremity had its onset during service or was otherwise causally or etiologically related to service. The examiner is to take as conclusive fact that the Veteran is presumed exposed to herbicides as a result of his military service in the Republic of Vietnam in this case. The examiner is reminded he/she may not rely solely on the mere lack of contemporaneous evidence of such during service and/or that carpel tunnel syndrome is not on the presumptive disease list for herbicide exposure as a basis for denial. Finally, the examiner should consider any of the Veteran’s lay statements of record regarding onset of symptoms and any continuity of symptomatology since onset and/or since discharge from service. Finally, the examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah Campbell