Citation Nr: 1819804 Decision Date: 04/03/18 Archive Date: 04/12/18 DOCKET NO. 13-22 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for peripheral neuropathy of the right and left upper extremities, claimed as a result of exposure to herbicide agents, including as secondary to the service-connected diabetes mellitus type II (DM). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel INTRODUCTION The Veteran had active service from August 1965 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran submitted a notice of disagreement (NOD) in May 2010. A statement of the case (SOC) was provided in July 2013. The Veteran perfected his appeal with the timely submission of VA Form 9 (Substantive Appeal) in August 2013. The Veteran was provided with a Board hearing before the undersigned Veterans Law Judge (VLJ) in February 2014. A copy of the transcript has been associated with the claims file. The issue on appeal was previously remanded by the Board in May 2015 and September 2017 for further evidentiary development. This appeal was processed using the Veteran Benefits Management System (VBMS) paperless claims processing system. Any future consideration of this Veteran's case should take into consideration the existence of the electronic records. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam Era. 2. The Veteran's peripheral neuropathy of the right and left upper extremities did not manifest during, or as a result of active military service, to include his presumed exposure to herbicides. 3. The Veteran's peripheral neuropathy of the right and left upper extremities is not proximately due to or aggravated by his service-connected DM. CONCLUSION OF LAW The criteria for establishing service connection for peripheral neuropathy of the right and left upper extremities are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Specifically, the Board finds that VA has satisfied its duty to notify under the Veterans Claims Assistance Act (VCAA) by way of a November 2009 letter which was sent prior to the initial unfavorable decision. Such letter advised the Veteran of the evidence and information necessary to substantiate his claim. Furthermore, the Veteran was informed of his and VA's respective responsibilities in obtaining such evidence and information. VA has obtained service treatment records and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issue decided below have been obtained and associated with the Veteran's electronic claims file, and the Veteran has not contended otherwise. The Veteran has been provided with VA examinations and an accompanying addendum opinion that addresses the contended causal relationship between the claimed disability and his service, including his claimed disability and his service-connected DM. 38 U.S.C. §5103A; 38 C.F.R. §3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Given that the pertinent medical history was noted by the examiners, the examination reports set forth detailed examination findings in a matter that allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examinations and accompanying report of record are adequate for rating purposes and additional examination is not necessary regarding the claim. See also 38 C.F.R. §§3.326, 3.327, 4.2. Additionally, the Board finds that there has been substantial compliance with its September 2017 remand directives. The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Rules and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may be established on a presumptive basis for certain chronic diseases, if such diseases are shown to have been manifested to a compensable degree within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. Where the Veteran asserts entitlement to service connection for a chronic disease and there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic diseases is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). See 38 C.F.R. § 3.309(a). Peripheral neuropathy is not included in the list of chronic diseases under 38 C.F.R. § 3.309(a). Service connection may also be established on a secondary basis for: (1) a disability that is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. §§3.310(a)-(b); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993) (explaining 38 C.F.R. §3.310(a)); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (explaining 38 C.F.R. §3.310(b)). In order to establish service connection for a disability on a secondary basis, there must be (1) medical evidence a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection, or link between, the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The governing law provides that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116(f). Furthermore, VA regulations provide that, if a Veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disorders. 38 C.F.R. § 3.309(e). Early onset peripheral neuropathy is a disease associated with exposure to certain herbicide agents. See 38 C.F.R. § 3.309(e) (2017). Under the most recent VA amendments in September 2013, peripheral neuropathy must become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicide agents to qualify for the presumption of service connection. 78 Fed. Reg. 54, 763-01, 54,764 (September 3, 2013). The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time that supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). It is VA policy to administer the laws and regulations governing disability claims under a broad interpretation and consistent with the facts shown in every case. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. §3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. 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 submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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). Factual Background The Veteran contends that he was exposed to herbicide agents while serving in the Republic of Vietnam, which he maintains caused him to develop peripheral neuropathy of the bilateral upper extremities. In the alternative, he maintains that his peripheral neuropathy of the right and left upper extremities is secondary to his service-connected diabetes mellitus type II. The Veteran's service treatment records are negative for findings related to peripheral neuropathy of the right and left upper extremities. Significantly, the Veteran's July 1965 enlistment examination and May 1966 examination both contain "Normal" results for "Upper Extremities." The Veteran's post-service treatment records contain a Quad examination from June 1977 that also shows "Normal" results for "Upper Extremities." The Veteran was provided with a VA examination in January 2010 where he reported that his fingers become ashened or pale when they are cold. He stated that they are not painful to touch. The VA examiner noted that the Veteran does not have any events of edema in his extremities. The examiner added that he did not see any blanching or discoloration of the Veteran's fingers. He also found no edema or breakdown of skin in the hands. VA treatment records show that the Veteran reported pain in his feet and hands in September 2010. In January 2011, he reported numbness and tingling in his hands and feet. Later in January 2011 he reported numbness in his palm and the tips of his thumb on the right hand and index finger on the left hand. The Veteran was provided with a diabetic sensory-motor peripheral neuropathy VA examination in February 2012. The VA examiner noted that the Veteran did not have an upper extremity diabetic peripheral neuropathy, but he did have lower extremity peripheral neuropathy. The VA conducted an EMG/NCS of the upper extremities in April 2014. The studies showed findings that were compatible with bilateral ulnar nerve focal neuropathy about the elbow without EMG evidence of denervation; right side moderate and left side mild. There was no electro diagnostic evidence of other neuropathic process involving the upper extremities. The Veteran was most recently provided with a peripheral nerve conditions VA examination in July 2015 during which the Veteran was diagnosed with bilateral ulnar neuropathy. The examiner found that the Veteran presented with mild paresthesias and (or) dysesthesias, and mild incomplete paralysis of the ulnar nerve for both the right and left upper extremities. The examiner commented that there was positive Tinsel's sign bilaterally over the ulnar tunnel. The examiner opined that the bilateral upper extremity peripheral neuropathy is less likely than not incurred in or caused by service, including Agent Orange exposure. The examiner explained that the Veteran had discharged from active duty service in 1971, and that he was diagnosed with ulnar peripheral neuropathy in 2014. He added that the peripheral neuropathy relating to herbicides for a presumptive diagnosis would have to develop within one year of exposure, which was not the case here. The July 2015 VA examiner also opined that the bilateral upper extremity peripheral neuropathy is less likely than not proximately due to or the result of the Veteran's service connected diabetes mellitus, type II. According to the examiner, the Veteran was diagnosed with bilateral ulnar neuropathy as seen on the EMG/NCS in April 2014. The examiner commented that the EMG, as per chief of rehab medicine, VAMC PGH, nerve conduction studies, only detect the presence or absence of large fiber peripheral nerve dysfunction; and that it does not include the small unmyelinated fibers, which are affected first. Thus, the diagnosis is made based on clinical symptoms. The examiner explained that the Veteran's clinical history was not consistent with diabetic peripheral neuropathy nor was his physical findings on examination; and that the Veteran's examination was consistent with his EMG/NCS conclusion, which would suggest a diagnosis such as ulnar tunnel entrapment and not related to his diabetes. An addendum opinion to the July 2015 VA examination was provided by the VA in October 2017. The VA examiner noted that he reviewed all evidence presented to him including the July 2015 VA examination, data from the National Academy of Sciences (NAS), a National Institute of Health (NIH) study, and a Journal of American Academy of Neurology study contained in the record. Referencing the EMG nerve conduction study performed in 2014, the examiner noted that the examination in July 2015 was consistent with the findings of ulnar tunnel entrapment. The examiner noted that he reviewed the Veteran's service treatment records that are silent for any evaluation, diagnosis, or treatment of a neuropathic process. The Veteran left service in 1971 and was not diagnosed with ulnar neuropathy until 2014. The examiner noted that while data from the NAS is appreciated, it is not supporting the facts of the etiology of ulnar neuropathy as stated on the evidence-based medical facts noted in the opinion. The examiner added that there is no evidence to support that the Veteran's current bilateral upper extremity ulnar neuropathy was caused by or aggravated by his time in service nor caused by or aggravated by exposure to Agent Orange. The VA examiner further noted that the Veteran is clearly service-connected for DM. However, as documented by the evidence-based literature noted in the addendum opinion, ulnar entrapment is not caused by DM. And although this examiner reviewed studies from the NIH as well as the Journal of American Academy of Neurology, it is not supported by the evidence-based medical facts noted above. Therefore, in the examiner's opinion, the Veteran's bilateral upper extremity ulnar neuropathy was not caused by, aggravated by, or permanently progressed at a higher rate by his service-connected DM. Analysis The Board finds that the preponderance of the evidence is against service connection for peripheral neuropathy of the right and left upper extremities on a presumptive basis. Though the Veteran served in the Republic of Vietnam during the Vietnam War and is therefore presumed to have been exposed to Agent Orange during service, the Veteran's first noted reports of cold hands and fingers were in January 2010, more than 38 years after his separation from service in August 1971. The Veteran's diagnosis of peripheral neuropathy does not qualify as "early onset" and does not warrant the herbicide exposure presumption under 38 C.F.R. § 3.309(e). The claim is also denied on a direct and secondary basis. First, there is no evidence of peripheral neuropathy of the upper extremities in service. As noted above, the Veteran's July 1965 and May 1966 examinations show normal "Upper Extremities." In fact, there is no record of any upper extremity issues, to include peripheral neuropathy until January 2010, approximately 38 years after service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). The Board finds the July 2015 VA examination and accompanying addendum opinion from October 2017 to be highly probative in this case. After a thorough review of the Veteran's record including his lay testimony, the VA examiner opined that the Veteran's peripheral neuropathy of the upper extremities is less likely than not incurred in or caused by service, including Agent Orange exposure. The VA examiner also opined that the Veteran's peripheral neuropathy of the upper extremities was not caused by, aggravated by, or permanently progressed at a higher rate by his service-connected DM. These opinions were supported by adequate rationales and the Veteran has not submitted any conflicting medical opinions. It is acknowledged that the Veteran is competent to give evidence about his observable symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994). It is further acknowledged that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, however, the Veteran has not alleged that he began seeing symptoms of peripheral neuropathy of the upper extremities during military service or within one year of service. In March 2012, the Veteran submitted a statement that he has had tingling in his hands for 30 years, but this would still not bring the symptoms back to within one year of separation from service. For these reasons, continuity of symptomatology has not here been established, either through the competent evidence or through the Veteran's statements. While the Board is sympathetic to the Veteran's claim, taking into account all of the relevant evidence of record, the preponderance of the evidence is against a finding of an etiological relationship between the Veteran's peripheral neuropathy of the right and left upper extremities and his active service or his service-connected DM. Accordingly, the Board finds that the claim of entitlement to service connection for peripheral neuropathy of the right and left upper extremities must be denied on a direct and secondary basis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. §5107(b); 38 C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for peripheral neuropathy of the right and left upper extremities, claimed as a result of exposure to herbicide agents, including as secondary to the service-connected DM is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs