Citation Nr: 18157798 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-57 606 DATE: December 13, 2018 ORDER Service connection for a back disorder is denied. Service connection for a bilateral knee disorder is denied. Service connection for a respiratory disorder is denied. Service connection for a heart disorder is denied. Service connection for a bilateral lower extremity nerve disorder, characterized as radiculopathy, to include as secondary to toxic herbicide exposure, is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to toxic herbicide exposure, is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran does not have a diagnosis of a respiratory disorder for VA compensation purposes. 2. Throughout the period on appeal, the Veteran does not have a diagnosis of a heart disorder for VA compensation purposes. 3. The Veteran’s back disorder was not shown in service or for many years thereafter, and is not otherwise related to active duty service. 4. The Veteran’s bilateral knee disorder was not shown in service or for many years thereafter, and is not otherwise related to active duty service. 5. The Veteran’s bilateral lower extremity nerve disorder was not shown in service or for many years thereafter, and is not otherwise related to active duty service, to include as secondary to toxic herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 2. The criteria for service connection for a heart disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 3. The criteria for service connection for a back disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 4. The criteria for service connection for a bilateral knee disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 5. The criteria for service connection for a bilateral lower extremity nerve disorder, characterized as radiculopathy, to include as secondary to toxic herbicide exposure, are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to March 1970. The Board notes that the Regional Office (RO) received new medical treatment records that were not previously considered in its last SOC. However, a review of these records reveals that the vast majority of them are irrelevant, and that to the extent there are relevant records, these records were previously on file, or are redundant and cumulative of the records already on file. As a result, there is no prejudice to the Veteran for the Board to consider these records in the first instance and a remand for the RO’s initial consideration of this evidence is not required. 38 C.F.R. § 20.1304(c). Service Connection 1. Entitlement to service connection for a back disorder 2. Entitlement to service connection for a bilateral knee disorder 3. Entitlement to service connection for a respiratory disorder 4. Entitlement to service connection for a heart disorder 5. Entitlement to service connection for a bilateral lower extremity nerve disorder, characterized as radiculopathy, to include as secondary to toxic herbicide exposure The Veteran asserts that his back, bilateral hip, respiratory, bilateral knee, heart, and bilateral lower extremity nerve disorders are related to service. He specifically contends that he hurt his knees and back while parachuting. As a preliminary matter, the Board concludes that the Veteran does not have a current diagnosis of a respiratory or heart disorder, 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). Specifically, the Board finds that after a thorough reading of the evidence of record, including the October 2012, February 2013, March 2013, December 2015, February 2016, September 2017, and December 2017 private and VA treatment records, the Veteran’s heart and lungs were essentially reported as normal with no diagnosis of any related disorders. Further, while the Veteran has been diagnosed with hypertension, this is not a disorder related to his heart, and instead is addressed separately in the remand section. Moreover, to the extent the Veteran asserts that he has a heart condition and/or disorder based upon hyperlipidemia (high cholesterol), the Board notes that elevated cholesterol without an underlying disorder is not recognized as a disability for VA benefits purposes. See 38 U.S.C. §§ 101(16), 105(a), 1110; 38 C.F.R. § 3.303(c); see also 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (Diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities). The term “disability” as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability, thus, in the absence of proof of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board also acknowledges the Veteran’s assertions and belief that he has a heart and a respiratory disorder, however, he is not competent to provide a diagnosis in this case. These issues are medically complex and requires specialized medical education and knowledge of the interaction between multiple organ systems in the body, as well as the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, the preponderance of the evidence is against a finding that the Veteran has a heart and/or respiratory disorder at any point during the time on appeal. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Next, while the Board concedes toxic herbicide exposure, the Board determines that presumptive service connection for a bilateral lower extremity nerve disorder, characterized as radiculopathy, is not warranted because there is not sufficient evidence that he has early onset peripheral neuropathy. 38 C.F.R. § 3.307(a)(6), 3.309(e). Nevertheless, the Veteran may still establish service connection for this disorder with proof of direct causation. With respect to a bilateral knee, back, and bilateral lower extremity disorder, the Board concludes that while the Veteran has a current diagnosis of these disorders, the preponderance of the evidence weighs against finding that these disorders began during service or is otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309. In this case, the Veteran’s service treatment records are silent for complaints or a diagnosis of a bilateral hip, back, and/or bilateral lower extremity nerve disorder. Specifically, his March 1970 separation examination does not document a diagnosis of these disorders. Moreover, the Board observes that while the Veteran endorsed a history of broken bones at separation, he stated that his heath was “good” and did not report any specific symptoms or complaints related to the disorders on appeal. Similarly, while the Veteran’s treatment records include statements to his medical providers regarding symptoms of these disorders since service, the objective medical evidence nevertheless does not demonstrate any symptoms, manifestations, or a diagnosis related to a knee, back, or lower extremity nerve disorder until approximately 2012-2013. Therefore, continuity of symptoms has not been shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board recognizes the statements from the Veteran regarding his history of knee, nerve, and back symptoms since service. While the Veteran is competent to report that he experienced musculoskeletal symptoms, including pain and limitation of motion, as well as numbness, weakness, and radiculopathy, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current disorders. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In any event, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is nonetheless not sufficient in establishing a relationship between his disorders and service. As an initial matter, the Board finds that such a large gap in treatment since separation from service weighs against the Veteran’s claims. Further, the Veteran’s medical records, including his March 1970 separation examination and report of medical history, is inconsistent with his reports of symptoms since service. Additionally, the Board notes that the Veteran submitted claims for other VA benefits prior to claiming the issues on appeal. Thus, the fact that the Veteran was aware of the VA benefits system and failed to submit a claim for the disorders he now claims, weighs heavily against his credibility. Although the Veteran is not competent to diagnosis and provide etiological opinions related to the Veteran’s current symptoms/disorders and active service, service connection may nonetheless be established if a relationship may be otherwise established by competent evidence, including medical evidence and opinions. In this case, however, the competent evidence fails to establish a relationship between active duty and the Veteran’s current symptoms. In this regard, the Board places significant probative value on the opinions from the VA examiners that performed a detailed review of the Veteran’s service and medical treatment records, as well as a comprehensive physical examination. Specifically, the June 2015 examiner opined that the Veteran’s back, bilateral lower extremity nerve disorder, and bilateral knee disorders, were not related to service. In support, while the Veteran stated that he injured his back and knees during a parachute jump, the examiner noted that the Veteran’s records do not indicate that he had an injury to his knees or back during service. Further, the Board observes that the Veteran did not seek medical care or report knee, lower extremity nerve, and/or back symptomatology to his medical providers for over 40 years after service. Moreover, the examiner opined that the Veteran’s disorders were more likely related to his age and post-service occupations that included construction and landscaping. Additionally, with respect to the Veteran’s lower extremity nerve disorder, the September 2016 VA examiner determined that this disorder was not related to his exposure to toxic herbicides. Of note, the examiner opined that while the Veteran was exposed to toxic herbicides during service, and there was some indication in the medical evidence that it was a “possible” cause of his neuropathy, there is not sufficient evidence to indicate a relationship between toxic herbicide exposure and his lower extremity nerve disorder. Further, the examiner noted that there “may be over one hundred possible causes for peripheral neuropathy.” As such, the Board finds that his bilateral lower extremity nerve disorder is less likely than not related to toxic herbicide exposure, and/or otherwise etiologically related to active service. The Board also notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a nexus between his disorders and active service. As part of this claim, the Board recognizes the statements from the Veteran, regarding the relationship between his disorders and active service. Specifically, the Veteran asserts that his back and knee disorders are related to parachuting. Nevertheless, while he is competent to provide testimony regarding observable symptomatology such as pain, limitation of motion, weakness, and numbness, he is not competent to provide a nexus opinion in this case. The issues are also medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s disorders are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. REASONS FOR REMAND Entitlement to service connection for hypertension, to include as secondary to toxic herbicide exposure, is remanded. The Board observes that the Veteran was exposure to toxic herbicides during his service in Vietnam. As such, the Board notes that while hypertension is not a disorder that may be presumed related to toxic herbicide exposure, the National Academy of Sciences Institute of Medicine has concluded that there is “limited or suggestive evidence of an association” between herbicide exposure and hypertension. See 77 Fed. Reg. 47924, 47926-927 (Aug. 10, 2012). While not determinative, such evidence is sufficient to warrant a VA opinion on the issue. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Obtain all treatment records that are available from the VA Medical Center in Newington, Connecticut, as well as from any VA facility from which the Veteran has received treatment, since July 2018. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit the medical records of such treatment. 2. Schedule the Veteran for a VA examination to determine the nature, extent, onset and etiology of his hypertension. The claims file must be provided to the examiner for review. All indicated studies deemed necessary by the examiner should be performed, and all findings of these tests should be reported in detail. The examiner should specifically provide opinions as to whether it is at least as likely as not (i.e. a 50 percent probability or greater) that his hypertension had its onset in, or is otherwise etiologically related to, his active service, to include his toxic herbicide exposure. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel