Citation Nr: 18153619 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-40 359 DATE: November 29, 2018 ORDER Entitlement to service connection for residuals of a head injury is denied. Entitlement to service connection for blackout spells, to include as due to exposure to solvents, is denied. REMANDED Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. FINDINGS OF FACT 1. The Veteran does not have residuals of an in-service head injury. 2. The Veteran does not have blackout spells. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of a head injury have not been met. 38 U.S.C. § 1110, 5107 (2014); 38 C.F.R. § 3.303 (2018). 2. The criteria for entitlement to service connection for blackout spells, to include as due to exposure to solvents, have not been met. 38 U.S.C. § 1110, 5107 (2014); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1983 to November 1987. The Veteran filed his original claim for service connection for peripheral neuropathy of the upper and lower extremities, claimed as due to exposure to solvents in active service, in October 2001. In an August 2003 rating decision, the RO denied entitlement to service connection for peripheral neuropathy. The Veteran filed a timely Notice of Disagreement (NOD) and a Statement of the Case (SOC) was issued in July 2006. The Veteran did not perfect an appeal to the decision. In September 2012, the Veteran again filed a claim for service connection for peripheral neuropathy of the upper and lower extremities, claimed as due to exposure to solvents, which the RO denied in October 2013. The Veteran perfected his appeal in August 2016. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1131; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). 1. Entitlement to service connection for residuals of a head injury The Veteran contends that he suffered a head injury during service as a result of a bicycle accident, which reportedly occurred after exposure to solvents, and that he continues to suffer from residuals of that head injury. The Board concludes that the Veteran does not have a current diagnosis of head injury 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); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records (STRs) document a fall from a bicycle resulting in loss of consciousness during service and treatment for mild closed head injury with diagnosis of concussion. The Veteran’s post-service treatment records do not reflect residuals of a head injury. In June 2003 he was treated for a tension headache, which the clinician noted was likely due to the Veteran’s cervical spine disability. In December 2003, it was noted that his headaches had resolved with allergy medication. In November 2002, he was treated for dizziness, nausea, headache and vomiting. He complained of headaches in January 2006, which he and the clinician attributed to sinusitis. However, these symptoms were attributed to a viral illness. He was treated for similar symptoms in December 2015, at which time he was diagnosed with pneumonia. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1131; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). As the weight of the evidence of record does not demonstrate that the Veteran has a current head injury disability, the Board must deny the claim on appeal for entitlement to service connection. In reaching the above conclusion, the Board has not overlooked the Veteran’s statements supporting his claim. While the Veteran believes that he has residuals from a head injury that he incurred during service, as a layperson, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of head injury residuals are matters not capable of lay observation, and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of any current head injury residuals is not competent medical evidence. 2. Entitlement to service connection for blackout spells, to include as due to exposure to solvents The Veteran contends that he was exposed to solvents during active service and as a result he continues to suffer from blackout spells. The Board concludes that the Veteran does not have a current diagnosis of blackout spell condition 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); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records (STRs) document a fall from a bicycle resulting in loss of consciousness during service and treatment for mild closed head injury with diagnosis of concussion. The Veteran claims that he blacked out on the bicycle because he had been exposed to solvents at his active duty workplace, and that he has suffered post-service blackouts. In the Veteran’s written statements, he referenced blackouts that occurred in 1989, 1993, 1997, and 1999. The Veteran’s post-service treatment records do not reflect any complaints of, treatment for, or diagnosis of blackouts. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1131; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). As the weight of the evidence of record does not demonstrate that the Veteran has a current blackout spells disability during the pendency of the appeal, the Board must deny the claim on appeal for entitlement to service connection. In reaching the above conclusion, the Board has not overlooked the Veteran’s statements supporting his claim. While the Veteran believes that he has a blackout spell disability related to service, as a layperson, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of blackout spells as a disability are matters not capable of lay observation, and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of any blackout spells is not competent medical evidence. REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. 2. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. 3. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. 4. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. The Veteran’s claim for entitlement to service connection for peripheral neuropathy of the upper and lower extremities was denied in an August 2003 rating decision. In the July 2004 NOD, he stated that his military occupational specialty exposed him to numerous chemicals. He described an incident where, after spending an entire day working with solvents, he blacked out and crashed his bike. He attributed this incident to the chemicals that he was exposed to, and maintained that he was entitled to service connection for peripheral neuropathy. The RO noted that the Veteran’s service treatment records were unavailable, and informed the Veteran that his claim would be reconsidered if those records were later obtained. The RO repeated this assertion in the July 2006 SOC. In September 2012, the Veteran filed a new claim for peripheral neuropathy of the upper and lower extremities. On May 10, 2016, the RO located official service treatment records with the file, some of which document a fall from a bicycle during service as contended by the Veteran. These are thus relevant official service department records with respect to the August 2003 rating decision and July 2006 SOC. If VA denies a claim where the decision was made without access to service department records, and those official relevant records are later located and associated with the file, VA will reconsider the claim, notwithstanding the provisions regarding reopening finally denied claims. 38 C.F.R. § 3.156(c). As the service treatment records fall into this category, the claim must be reconsidered, not reopened, and the operative date of claim is October 2001. After a review of the Veteran’s claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran’s claim for service connection for peripheral neuropathy of the upper and lower extremities. The Veteran contends that during active service he worked with solvents as part of his duties that included cleaning weapons, and that these solvents resulted in the development of peripheral neuropathy. The Veteran’s records reflect that he is currently diagnosed with idiopathic peripheral neuropathy. The Veteran’s records document that his military occupational specialty (small arms repairer) involved working with weapons. In a February 2013 VA treatment note, a medical provider recorded that the Veteran’s unspecified idiopathic peripheral neuropathy is of an unknown etiology and could be related to exposure to solvents, among other options. Under the duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4). The requirements to secure a VA examination are a low bar. Here, the Veteran has met this low threshold by VA treatment records documenting a diagnosis of peripheral neuropathy, records documenting work cleaning weapons, and a medical provider noting chemical inducement among various possible etiologies for the condition. Accordingly, the claim is remanded for a VA examination for peripheral neuropathy. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the currently diagnosed peripheral neuropathy of the upper and lower extremities. All indicated tests and studies should be conducted. The examiner must opine whether it is at least as likely as not that the Veteran’s peripheral neuropathy was caused by or is etiologically related to any incident of active duty service, to include conceded in-service exposure to chemicals (including cleaning solvents). A complete rationale for any opinion is required. If the examiner is unable to provide an opinion without resort to speculation, explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Miller, Associate Counsel