Citation Nr: 19180169 Decision Date: 10/22/19 Archive Date: 10/22/19 DOCKET NO. 12-07 764 DATE: October 22, 2019 ORDER Service connection for bilateral upper and lower peripheral neuropathy, to include as due to herbicide and chemical exposure, is denied. Service connection for hypertension, to include as due to herbicide exposure, is granted. Service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected restrictive and obstructive lung disease, is denied. Service connection for a bilateral foot condition, to include as due to herbicide exposure, is denied. Service connection for a bilateral hand condition, to include as secondary to upper extremity peripheral neuropathy and as a result of exposure to herbicides, ionizing radiation, and other toxic chemicals, is denied. FINDINGS OF FACT 1. The weight of the evidence is against finding that the currently diagnosed bilateral upper and lower peripheral neuropathy was caused by or related to any incident of service, to include as due to herbicide and chemical exposure. 2. The Veteran's hypertension was caused by or related to service. 3. The weight of the evidence is against finding that the currently diagnosed OSA was caused by or related to any incident of service or aggravated by the service-connected restrictive and obstructive lung disease. 4. The Veteran’s bilateral foot disorder was not incurred in nor caused by the Veteran's military service. 5. The Veteran's bilateral hand disability was not shown in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; exposure to herbicide agents, ionizing radiation, and other toxic chemicals is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral upper and lower extremity peripheral neuropathy, to include as due to herbicide and chemical exposure, have not been met. 38 U.S.C. § § 1110, 5107; 38 C.F.R. § § 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for hypertension, to include as due to herbicide exposure, are satisfied. 38 U.S.C. § § 1101, 1110, 1112, 1113, 5107; 38 C.F.R. § § 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for OSA, to include as secondary to service-connected restrictive and obstructive lung disease, are not met. 38 U.S.C. § § 1110, 5107; 38 C.F.R. § § 3.102, 3.310. 4. The criteria for service connection for a bilateral foot condition, to include as due to herbicide agent exposure, have not been met. 38 U.S.C. § § 1121, 5103, 5103A, 5107; 38 C.F.R. § § 3.102, 3.159, 3.303, 3.304, 3.309, 3.310. 5. The criteria for service connection for a bilateral hand condition, to include as secondary to upper extremity peripheral neuropathy and as a result of exposure to herbicides, ionizing radiation, and other toxic chemicals, 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, 3.326. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1971 to February 1973. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § § 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. In the context of claims for secondary service connection, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities and the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998). The record must also contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. § § 1101, 1112, 1113, 1131, 1137; 38 C.F.R. § § 3.307, 3.309. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § § 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypertension is a chronic disease. 38 U.S.C. § 1101. Therefore, section 3.303(b) is potentially applicable. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Veterans who during active 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and early-onset peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. § § 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; diabetes mellitus, type 2, Hodgkin's disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), Parkinson's disease, and ischemic heart disease. 38 U.S.C. § 1116; 38 C.F.R. § § 3.307(a)(6)(iii), 3.309(e), 3.313, 3.318. VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630-27641 (2003). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). In deciding an appeal, 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. Gabriel v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Regarding the competency of lay evidence, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms, as symptoms require only personal knowledge of what is observed using his senses, not medical expertise. See Layno, 6 Vet. App. At 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 307 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Service connection for bilateral upper and lower peripheral neuropathy, to include as due to herbicide and chemical exposure, is denied. The Veteran contends that his bilateral upper and lower extremity peripheral neuropathy is due to his in-service herbicide and chemical exposure. As an initial matter, the evidence shows that the Veteran was diagnosed with bilateral upper and lower extremity peripheral neuropathy. The current disability element is established. See Shedden v. Principi, 381 F.3d 1163, 1167. However, the Veteran did not have service in the Republic of Vietnam, and he does not contend such. Rather, the Veteran contends that he was exposed to herbicide agents and chemicals while stationed at Fort Greely, Alaska. However, VA has not been able to verify herbicide and chemical exposure. The Veteran served as a clerk typist, and a review of the Veteran's service treatment records (STRs) show no complaints, treatment or diagnoses for a neurologic disability or condition, nor is the condition shown to have manifested within the applicable period. Thus, herbicide exposure is not presumed, and the second element of service connection is not otherwise met. In a January 2006 letter, Dr. E.B.G. opined that it is at least as likely as not that the Veteran’s neuropathy is related to his service. Dr. E.B.G. stated that the Veteran has been a patient of his for twenty-five years, and that the Veteran has been complaining of symptoms since May 2004. However, despite attempts, VA has been unable to verify in-service exposure. Thus, this opinion is of no probative value as to the nexus element because it is based on inaccurate information. In a March 2007 independent medical examination, C.N.B., M.D., opined that the Veteran’s neuropathy is due to his in-service exposure to toxins. However, this opinion is based on the Veteran’s contention that he was exposed to in-service chemicals, which the VA has been unable to verify. Thus, this opinion is also of no probative value because it is based on inaccurate information. A medical diagnosis is only as credible as the history on which it was based. Reonal v. Brown, 5 Vet.App. 458 (1993); see also Elkins v. Brown, 5 Vet.App. 474, 478 (1993); Swann v. Brown, 5 Vet.App. 229 (1993) (observing that a diagnosis “can be no better than the facts alleged by the appellant”). As a lay person, the Veteran does not have the training or expertise to render a competent opinion as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). There is no probative evidence of record that the Veteran’s claimed condition is related to his service and there is no probative medical nexus opinion. The preponderance of the evidence is against a finding of service connection for the Veteran's peripheral neuropathy of the bilateral upper and lower extremity. The Veteran did not complain or was diagnosed or treated with peripheral neuropathy during service. The Veteran reported no issues on his exit examination. VA has not been able to verify herbicide or chemical exposure. The medical evidence of record does not show the Veteran's claimed peripheral neuropathy manifested within one year of his separation from service in 1973. As such, presumptive service connection based on 38 C.F.R. § 3.309(e) is not warranted in this case. Although the Veteran has been treated for years for peripheral neuropathy, review of the medical record shows the earliest documentation of peripheral neuropathy was the Veteran's diagnosis in 2004, decades after separation of service. Although the January 2006 and March 2007 opinions state that the Veteran’s condition was caused by in-service exposure to toxins, the opinions were based on the outside research and reports, and the Veteran’s contention that he was exposed to herbicides and chemicals, which is not supported by the evidence of record and has not been verified by VA. As such, the Board finds that the medical opinions of record are outweighed by more probative evidence of record. The preponderance of the evidence is against the claim and the appeal is denied. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Service connection for hypertension, to include as due to herbicide exposure, is granted. The Veteran contends that his hypertension is related to his service, to include as due to herbicide agent exposure in-service. As noted, the Veteran served as a clerk typist at Fort Greely, Alaska. VA has not been able to verify herbicide exposure. Thus, herbicide agent exposure is not established. The Veteran has hypertension, which is a chronic disease under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a). While the record contains a few elevated blood pressure readings immediately post-service, VA and private treatment records show the Veteran was not diagnosed with hypertension until approximately thirty years after his separation from service. Thus, service connection is not warranted as presumptively related to military service under 38 C.F.R. § § 3.309. The Veteran’s service treatments records also indicate elevated blood pressure readings. In a March 2007 independent medical examination, C.N.B., M.D., stated that he reviewed the Veteran’s medical records for the purpose of making his opinion regarding the Veteran’s high blood pressure. Particularly, C.N.B., M.D., stated that he reviewed the medical records, imaging reports, lay statements, other medical records, and medical literature. C.N.B., M.D., opined that the Veteran’s hypertension began in-service. C.N.B., M.D., based his opinion on elevated blood pressure readings in-service, and medical literature relating high blood pressure readings with risk of cardiovascular disease. In a May 2014 VA examination, the examiner opined that the Veteran's pulmonary hypertension is at least as likely as not proximately due to or the result of the Veteran's service-connected chronic obstructive, restrictive lung disease. The examiner's opinion is based on a review of the medical records and medical history. The examiner stated that "it is known clinically that this condition, when progressive and long-standing, can cause pulmonary hypertension." In a November 2014 VA examination, the examiner stated that there is evidence of restrictive and obstructive lung disease, but there is no evidence or link to pulmonary hypertension. The examiner stated that current complaints of hypertension is not caused by or a result of active service. The examiner stated that the Veteran's personal knowledge of his hypertension predates his restrictive lung disease diagnosis. In a February 2015 addendum opinion, the examiner opined that it is less likely than not that the Veteran’s pulmonary hypertension was caused by his service-connected pulmonary obstructive and restrictive disease. The examiner based his opinion of a review of the record. The examiner also stated that the first documentation of pulmonary hypertension was in a 2010 medical record in which the Veteran reported normal echocardiogram and EKG. The examiner stated that the Veteran’s recent pulmonary notes attribute his pulmonary hypertension of his ischemic cardiomyopathy. The March 2007 examination is probative as it provides an opinion that relates the Veteran’s hypertension directly to his in-service high blood pressure readings. The opinions from the May and November 2014, and February 2015 examinations are probative on the issue of secondary service connection. While these opinions are conflicted, they are of equal probative value. Thus, these opinions are at least in equipoise in terms of secondary service connection. The Board will grant service connection for hypertension on a direct basis. Therefore, service connection is warranted for hypertension, and the claim is granted. 3. Service connection for OSA, to include as secondary to service-connected restrictive and obstructive lung disease, is denied. The Veteran is currently diagnosed with OSA. The Veteran contends that his OSA is directly related to service. In addition, the Veteran contends that his currently diagnosed OSA was caused or aggravated by his service-connected restrictive and obstructive lung disease. For the reasons expressed below, the Board finds that service connection is not warranted. The record shows that, in May 2015, the Veteran underwent a VA examination for sleep apnea, at which time the examiner confirmed a diagnosis of obstructive sleep apnea since March 2013. The examiner noted that the Veteran is service-connected for COPD. After a review of the claims file, the examiner, opined that the sleep apnea was less likely than not aggravated beyond its normal progression by his service-connected COPD. The examiner explained that OSA consists of episodes of partial or complete closure of the upper airways that occur during sleep. He stated that COPD affects the lower airways. The May 2015 VA opinion adequate to decide the claim. The examiner explained the reasons for the conclusions rendered based on an accurate characterization of the evidence of record, and therefore the opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Moreover, under the facts of this case, there is no evidence that the Veteran possesses the necessary medical knowledge and expertise to render an opinion regarding the etiology of the diagnosed OSA. Thus, service connection is not warranted on a secondary basis. Direct service connection generally requires evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran generally contends that his OSA is etiologically related to his service. Service treatment records are negative for any pertinent abnormalities, including any OSA-related symptoms, treatment, or diagnoses. In March 2013 (approximately 40 years after separation), the Veteran underwent a sleep study to test for OSA; he was diagnosed with OSA in March 2013. After a review of the treatment records, the Board found no indication by a medical provider that the Veteran's OSA was etiologically related to any aspect of his service. Further, although the Veteran generally asserted that his OSA began in service, he has not provided evidence proving that he has the medical background necessary to competently render an etiological opinion for this disability (OSA is not lay-observable, as it must be diagnosed by sleep study). Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). In sum, based on the evidence above, the Board finds that the preponderance of the evidence is against finding that the OSA began during active service or is otherwise related to an in-service injury or disease. Thus, service connection for OSA on a direct basis must be denied. For the reasons and bases discussed above, the preponderance of the evidence is against the Veteran's claim on both a direct and secondary basis, and it therefore must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Service connection for a bilateral foot condition, to include as due to herbicide exposure, is denied. The Veteran contends that his bilateral foot condition is related to his service, to include as due to herbicide exposure. The Board has examined the claims file and all the medical evidence presented, including the Veteran's STRs and lay statements. The Veteran noted foot trouble on his March 1971 entrance examination. However, the Board did not find any evidence in the Veteran's in-service treatment records regarding treatment for a foot condition. The Veteran's physical examination for service separation conveys that no foot abnormalities were identified. The Board has examined all the post-service treatment records for relevant evidence. Records show that the Veteran has been treated for pain and burning in his feet, as well as intermittent edema. A December 2004 medical record notes bilateral foot pain with aching and burning sensations bilaterally. A history of neuropathy is noted as well as potential radiculopathy. In an April 2006 medical note, bilateral foot paresthesia was noted. A May 2011 medical note indicates episodes of arthritis in the feet with ankle swelling. Neuropathy and arthritis are associated with the Veteran’s bilateral foot condition throughout his medical record. The Board has considered the evidence discussed above and finds that the weight of the evidence is against the Veteran's claim. Thus, the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for a bilateral foot disorder to include as due to herbicide exposure in-service. The Board finds that the medical records do not support the Veteran's assertion that his bilateral foot condition is related to his service. The criteria for entitlement to service connection for bilateral foot disorder have not been met. Although the Veteran is entitled to the benefit-of-the-doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Service connection for a bilateral hand condition, to include as secondary to upper extremity peripheral neuropathy and as a result of exposure to herbicides, ionizing radiation, and other toxic chemicals, is denied. The Veteran contends that his bilateral hand condition is related to his service, to include as secondary to upper extremity peripheral neuropathy and as a result of exposure to herbicides, ionizing radiation, and other toxic chemicals while serving as a clerk-typist in Fort Greely, Alaska. However, VA has not been able to verify herbicide exposure. While the evidence shows the Veteran has diagnosis of osteoarthritis, service connection is not warranted based on herbicide agent exposure, exposure to ionizing radiation or other toxic chemicals. As discussed in detail above, the most probative evidence does not establish that the Veteran was exposed to herbicide agents, ionizing radiation or other toxic chemicals during active service. Service connection is not warranted secondary to upper extremity peripheral neuropathy, because upper extremity peripheral neuropathy is not a service-connected disability. Additionally, service treatment records are silent for any treatment or complaints of symptoms related to a bilateral hand condition. The Veteran’s separation examination and report of history also does not document any complaints or findings related to the bilateral hand condition. For these reasons, the Board finds that the record does not establish an in-service injury or event, and the Shedden elements of service connection have not been met. Service connection is not warranted on this basis. (Continued on the next page)   Further, arthritis of the bilateral hands was not shown in service, did not manifest to a compensable degree within one year of discharge, and was not noted in service with attributable continuity of symptomatology. As noted above, service records do not note any complaints or symptoms relating to arthritis of the hands. VA treatment records show the Veteran was not diagnosed until 2010 at the earliest, approximately 37 years after separation from service and outside of the applicable presumptive period. In summary, the preponderance of the evidence is against a finding of service connection. A hand condition has not been shown to be present during service, chronic in service, within one year of discharge, or continuous since service. There is no competent medical evidence linking the disability to service. The evidence does not establish that the Veteran was exposed to herbicide agents, ionizing radiation or other toxic chemicals, and that a hand condition was incurred as secondary to claimed exposure. There is no competent medical evidence linking a bilateral hand disability to service. As such, the preponderance of the evidence is against the claim for a bilateral hand disorder. The claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. T. Emmart, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.