Citation Nr: 1819929 Decision Date: 04/04/18 Archive Date: 04/16/18 DOCKET NO. 14-25 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the right lower extremity. 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity. 3. Entitlement to service connection for peripheral neuropathy of the right upper extremity. 4. Entitlement to service connection for peripheral neuropathy of the left upper extremity. 5. Entitlement to service connection for peripheral neuropathy of the neck. 6. Entitlement to service connection for hypertension, to include as secondary to service-connected acquired psychiatric disorder. 7. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Dean, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1970 to February 1973. These matters are before the Board of Veterans' Appeals (Board) on appeal from September 2011 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The evidence is against a finding that the Veteran's peripheral neuropathy of the right lower extremity is related to his military service. 2. The evidence is against a finding that the Veteran's peripheral neuropathy of the left lower extremity is related to his military service. 3. The evidence is against a finding that the Veteran's peripheral neuropathy of the right upper extremity is related to his military service. 4. The evidence is against a finding that the Veteran's peripheral neuropathy of the left upper extremity is related to his military service. 5. The evidence is against a finding that the Veteran's peripheral neuropathy of the neck is related to his military service. 6. The evidence is against a finding that the Veteran's hypertension is related to his military service, or his service-connected acquired psychiatric disorder. 7. The evidence is against a finding that the Veteran's sleep apnea is related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for peripheral neuropathy of the neck have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 6. The criteria for entitlement to service connection for hypertension, to include as secondary to service-connected acquired psychiatric disorder, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 7. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Legal Criteria and Analysis Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection nonetheless may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (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 - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Where a Veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and a chronic disease, including arthritis, manifests to a compensable degree within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). If a condition listed as a chronic disease in § 3.309(a) is noted during service, but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). For purposes of establishing service connection for a disorder resulting from exposure to an herbicide agent, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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 C.F.R. § 3.307 (a)(6)(iv). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran is seeking service connection for peripheral neuropathy of the right and left upper and lower extremities and the neck, for hypertension, and for sleep apnea. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by, or obtained on behalf of, the appellant be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Turning to the evidence, the Veteran's service treatment records show that when he enlisted in February 1970, his health was described as good and he had no problems other than cramps in his legs, appendicitis as a child, and a crab or shark bite before he entered the service. The Veteran injured his foot in March 1971. The Veteran completed a medical history report at the time of his separation in February 1973, and he again listed leg cramps as a health problem but denied any other illnesses or injuries, including high or low blood pressure or nervous trouble. A medical examination that month revealed no neurological problems, a blood pressure of 120/80, and no mention of sleep apnea. The Veteran filed a claim for compensation shortly after leaving the service and he was provided with a VA examination in May 1973. The examiner found no complaints of pain or limitation of motion in the Veteran's right ankle, knee, or leg, and found intermittent pain in the left elbow, which the examiner said was likely mild tendonitis. The claims file contains a report of medical history prepared by the Veteran in September 1997. The Veteran said that he did not have high blood pressure, trouble sleeping, or nervous trouble of any sort. The Veteran was provided a VA examination in December 1999. The VA examiner found chronic low back pain, cervical spine pain, and intermittent lower extremity paresthesias. The Veteran said that he injured his back while in the service when a tank door slammed on him and that he had pain ever since that time. The Veteran was treated at a VA facility in November 1999, complaining of low back pain and tingling in the soles of his feet. VA treatment records in June 2003 show a finding of minimal scoliosis of the Veteran's lumbosacral spine. In September 2003 the Veteran sent written statements to the RO in which he claimed combat duty and exposure to Agent Orange while in Korea. The Veteran said that he personally sprayed Agent Orange to kill vegetation in the DMZ for 30 days while in Korea. In a March 2004 letter, the Veteran's mother said that he incurred his back injury and his herbicide exposure during his service, and that he now has leg, hip, neck, and back pain. The Veteran testified at a RO hearing in April 2004. He discussed the tank-door injury, saying that the door slammed on his left foot, leg, knee, back, and neck, injuring him. The Veteran said that this was in early 1973 in Korea. In October 2004, the RO received a memo from a VA Compensation and Pension Service Managers' Conference Call with information on Agent Orange exposure in Korea. The memo listed units that are presumed to have been exposed to herbicide, including the 7th Infantry Division, 1-17th Battalion. In July 2005, the VA performed a sleep study on the Veteran. The examiner diagnosed moderate obstructive sleep apnea and prescribed a C-PAP machine. The examiner did not opine as to the cause of the Veteran's sleep apnea. In February 2006 a private physician wrote a note stating that the Veteran had joint pain in his legs and back and that the pain affects his work performance. In February 2006, the Veteran wrote another letter to the RO concerning his service in Korea. The Veteran said that he was in the 2nd Infantry Division, 1st-17th Battalion. He said that he was injured in August 1971 when his vehicle rolled over twice, and he was injured a second time when the rear tank door slammed on him, requiring his hospitalization and light duty for 30 days. The Veteran again said that he was exposed to herbicides and pesticides while in Korea. In a Form 9 substantive appeal filed in May 2008, the Veteran again stated that he was actually exposed to Agent Orange. The Veteran was treated for neuropathy of his feet at a VA facility twice in June 2007. The Veteran complained of pain, numbness, and tingling in both feet and legs, and said he had these feelings in his legs for the last 10 years. The Veteran was treated again in July and September, and complained of neck pain as well. In November 2007 a private physician diagnosed the Veteran with severe diabetic sensory neuropathy in his right and left lower extremities, and disc degeneration in the lower back. The Veteran was treated at a VA facility for severe pain in his left leg and left side in January and June 2008, and he was treated for diabetic neuropathy in March 2009. In November 2009 he was treated again at a VA facility for diabetic neuropathy with leg pain. The Veteran testified at a Board hearing in Waco, Texas, in October 2008. The Veteran testified that he was attached to the 1st and 17th and the 2nd and 23rd Infantry Division while in Korea, that he was under enemy fire and received hostile fire pay while there. The Veteran testified that he drove tanks and trucks and did reconnaissance missions in spite of being formally attached to a signal corps. The Veteran said that he was in Korea beginning in October 1970 and that he was sprayed with Agent Orange while there. The Veteran also testified as to X-ray evidence of arthritic degeneration of his back, left ankle, left knee, and left hip. In March 2012, the Veteran complained to VA physicians of neuropathy in both legs, pain when standing or walking, and he said that he needed to elevate his feet. VA records show that the Veteran was treated seen regularly throughout 2012 and 2013 for peripheral neuropathy and that he was prescribed gabapentin for the pain. In June 2013, the Veteran was afforded a VA examination for his peripheral neuropathy. The examiner noted that the Veteran has been diagnosed with diabetes mellitus type II, but found that his neuropathy is not diabetic in its origin. The Veteran told the examiner that the symptoms of peripheral neuropathy began in the 1970s and early 1980s, and the diabetes was not diagnosed until 2000. Therefore the examiner concluded that although the Veteran has peripheral neuropathy, it is unlikely that the neuropathy is related to his diabetes mellitus, and also unlikely related to the cold-weather injuries that the Veteran was also claiming. In June 2013 the Veteran was again treated at a VA facility for chronic pain in his legs, feet, knees, and hands. The VA physicians noted that the Veteran's sleep apnea was stable. The Veteran was also diagnosed with hypertension at a VA facility in June 2013. In a September 2013 memo, the VA determined that although the Veteran entered Korea in 1970 as a part of the 51st Signal Battalion, he was in the DMZ only from November 28, 1971, to January 15, 1972. The Veteran was treated again at a VA facility for pain in his feet in December 2013. The Veteran complained of pain and said that he was confused about his medications. The care provider tested the Veteran's sensory loss by monofilament and noted that the neuropathy had worsened to Level 2. The Veteran was treated again for sharp, shooting pain in his feet and low back, and said that it became worse when he was sitting. In April 2016, a VA physician provided a letter stating that the Veteran had suffered from peripheral neuropathy in both hands and feet since 2004. Also in April 2016, the Veteran was treated at a VA facility for peripheral neuropathy in his lower extremities. The physician found that the neuropathy had advanced to Level 3 and the Veteran was a high risk for amputation. The Veteran had sensory loss, diminished circulation, and a foot deformity or minor foot infection. A. Service Connection for Peripheral Neuropathy of the Right Lower Extremity, Left Lower Extremity, Right Upper Extremity, Left Upper Extremity, and Neck Regarding a direct service connection for the peripheral neuropathy claims, the Veteran has been diagnosed with peripheral neuropathy as early as 2004, and he has a current illness. But there is no evidence that the peripheral neuropathy is related to his military service. The Veteran was not treated for and did not complain of neuropathy during his service. VA treatment physicians found that his neuropathy was diabetic in nature and, although the Veteran has been diagnosed with diabetes mellitus type II, the physicians found that his diabetes is not service-connected. The VA examiner of June 2013 found that the Veteran's neuropathy was not diabetic, and did not speculate as to its cause. There being no medical evidence of a nexus between the Veteran's peripheral neuropathy and his service, direct service connection cannot be established. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran also claimed that his neuropathy was caused by exposure to herbicides during his service in and near the DMZ in Korea. Only early-onset peripheral neuropathy is subject to the herbicide presumption. 38 C.F.R. §3.309(e). And to qualify for the herbicide presumption, early-onset peripheral neuropathy must manifest within one year of the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). There is no evidence that the Veteran's peripheral neuropathy manifested within one year of the Veteran's deparature from the DMZ in January 1972. Peripheral neuropathy is an organic disease of the nervous system and is therefore considered by VA to be a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore the presumptive provisions of 38 C.F.R. § 3.303(b) apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. The record does not show that the Veteran had complaints, symptoms, diagnosis, or treatment for any peripheral neuropathy symptoms during or within one year after his service. The first record of pain in the Veteran's feet was in 1999, 26 years after leaving the service. The medical examination and medical history taken at the time of the Veteran's separation in February 1973 show nothing relating to peripheral neuropathy. Although the Veteran noted that he suffered from leg cramps, he had also complained of leg cramps in his enlistment examination three years earlier. Although the Veteran contends that his peripheral neuropathy was caused by his military service, his statements alone are not competent evidence to determine the cause of the disease. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, the probable etiology of peripheral neuropathy, falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran has not demonstrated or alleged expertise in determining a medical nexus, and he does not offer any supporting medical opinion or medical treatise evidence. Therefore, his opinion in this matter has no probative value. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim for service connection of peripheral neuropathy of the left and right upper and lower extremities and of the neck is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). B. Service Connection for Hypertension The Veteran also contends that his hypertension was caused by his military service and thus he is entitled to compensation. As the Veteran was diagnosed with hypertension by a VA treatment facility in June 2013, the questions for the Board are whether the Veteran had an in-service injury or event, and whether the in-service injury or event has caused the Veteran's current hypertension. There is no evidence of record showing a nexus of causation between the Veteran's hypertension and his military service, and therefore a direct service connection cannot be established. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Hypertension is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore the presumptive provisions of 38 C.F.R. § 3.303(b) apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. However, the record does not show that the Veteran had complaints, symptoms, diagnosis, or treatment for hypertension during or within one year after his service. The medical examination and medical history taken at the time of the Veteran's separation in February 1973 recorded the Veteran's blood pressure as 120/80, which does not meet the VA's criteria for the lowest disability evaluation under Diagnostic Code 7101 Hypertensive Vascular Disease. 38 C.F.R. § 4.104. The record does not contain a VA examination for hypertension. The VA is required to provide an examination when there is competent evidence of a current disability or persistent or recurrent symptoms of a disability, and there is evidence establishing that an event, injury, or disease occurred in service, and an indication that the disability or persistent or recurrent symptoms may be associated with the Veteran's service or with another service-connected disability, but there is insufficient competent medical evidence on file to make a decision on the claim. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that the evidence does not require a VA examination for hypertension in this case, as there is no evidence of an event, injury, or disease in the Veteran's service relating to blood pressure. The Veteran claims that the hypertension should be service-connected secondary to his service-connected PTSD. However, the record shows no medical evidence that the Veteran's hypertension is either caused by or aggravated by his service-connected psychological disorder. There is no other evidence supporting a relationship between the two other than the Veteran's contention. Although the Veteran contends that his hypertension was caused by his psychological disorder, his statements alone are not competent evidence to determine the cause of the disease. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, the probable etiology of a disorder such as hypertension, falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran has not demonstrated or alleged expertise in determining a medical nexus, and he does not offer any supporting medical opinion or medical treatise evidence. Therefore, his opinion in this matter has no probative value. In sum, there is no probative evidence showing that the Veteran's service-connected acquired psychiatric disorder caused, or aggravated, hypertension. Moreover, the evidence of record does not include post-service records within one year after service, vitiating the possibility of identifying characteristic manifestations of hypertension during service or within one year of separation. Additionally, there is no competent evidence suggesting that there exists a nexus between the Veteran's hypertension and service. Accordingly, the weight of evidence is against a finding that the Veteran's hypertension was caused by, or otherwise related to, active service, to include as secondary to service-connected acquired psychiatric disorder. The preponderance of evidence is against the Veteran's claim and there is no doubt to be resolved. See 38 U.S.C. § 5.107(b) (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. Service Connection for Sleep Apnea The Veteran also seeks service connection for sleep apnea. The June 2005 sleep study showed a disability in his moderate obstructive sleep apnea. However the record shows no evidence of a causal relationship between the sleep apnea and the Veteran's military service, and therefore direct service connection must be denied. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The June 2005 sleep study was not a VA examination and the Veteran has not received a VA examination for his sleep apnea. The Board finds that the record does not require a VA examination for sleep apnea, as there is no evidence of an event, injury, or disease during the Veteran's military service relating to it. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim for entitlement for service connection of sleep apnea is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for peripheral neuropathy of the right lower extremity is denied. Service connection for peripheral neuropathy of the left lower extremity is denied. Service connection for peripheral neuropathy of the right upper extremity is denied. Service connection for peripheral neuropathy of the left upper extremity is denied. Service connection for peripheral neuropathy of the neck is denied. Service connection for hypertension is denied. Service connection for sleep apnea is denied. ____________________________________________ Evan M. Deichert Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs