Citation Nr: 19110901 Decision Date: 02/13/19 Archive Date: 02/12/19 DOCKET NO. 15-24 581 DATE: February 13, 2019 ORDER Entitlement to service connection for eye disability, to include due to exposure to ionizing radiation, is denied. Entitlement to service connection for peripheral neuropathy of left upper extremity, to include due to exposure to ionizing radiation, is denied. Entitlement to service connection for peripheral neuropathy of right upper extremity, to include due to exposure to ionizing radiation is denied. Entitlement to service connection for peripheral neuropathy of left lower extremity, to include due to exposure to ionizing radiation, is denied. Entitlement to service connection for peripheral neuropathy of right lower extremity, to include due to exposure to ionizing radiation, is denied. FINDING OF FACT 1. The preponderance of the evidence is against a finding of a current diagnosis of an eye disability. 2. The preponderance of the evidence is against a finding that the Veteran’s peripheral neuropathy of the upper and lower extremities is related to an event, injury or disease in service, or manifested during service or within a year of separation from service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an eye disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2018). 2. The criteria for entitlement to service connection for peripheral neuropathy of the upper and lower extremities have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from June 1970 to March 1974. This appeal to the Board of Veteran’s Appeals (Board) arose from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office. The Veteran has perfected a timely appeal. See June 2014 Notice of Disagreement (NOD); June 2015 Statement of the Case (SOC); June 2015 Substantive Appeal (VA Form 9). Regarding the Veteran’s claim for service connection for his eye disability, the Board notes that the Veteran was denied service connection for an eye disability in December 1984. The RO denied service connection in November 2013 due to new and material evidence. Service treatment records were associated with the claims file after the decisions. Under 38 C.F.R. §3.156(c), “at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim “on the merits de novo”. The Veteran’s claim is therefore considered pending since the time of his original claim for service connection. See 38 C.F.R. 3.156; Vigil v. Peake, 22 Vet. App. 63 (2008). Service Connection A Veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. §3.303(a). Service connection can also be granted for chronic disabilities, if the evidence establishes that it manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §1112; 38 C.F.R. §3.307, §3.309. Service connection for chronic disabilities can be established through a showing of continuity of symptomatology since service, as an alternative to the nexus requirement. 38 C.F.R. §3.303(b). This option is limited to chronic disabilities listed in 38 C.F.R. §3.309(a). When there is an approximate balance of positive and negative evidence regarding any material issues, the Secretary shall give the benefit of the doubt to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for eye disability. The Veteran contends that he currently suffers from an eye disability, and that eye disability is the result of being exposed to radiation while working as antenna maintenance specialist during his service. In general, service connection for a condition, which is claimed to be attributable to ionizing radiation exposure during service, may be established in one of three ways. First, it may be presumptively service connected under 38 U.S.C §1112(c) and 38 C.F.R §3.309(d) for radiation exposed veterans. Under this section, if the Veteran is deemed to be an “atomic Veteran”, a Veteran that was exposed to radiation due to participating in radiation risk activity listed in the statute and has one of the presumptive diseases listed under the section, then service connection is warranted subject to provisions of 38 C.F.R. §3.307. Second way is under 38 C.F.R. §3.311, if the claimed disability is a radiogenic disease provided by the statute. Third, if the Veteran is not entitlement to relief under sections §3.309(d) and §3.311, direct service connection can be established by showing that the disease was incurred during or aggravated by service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed Cir. 1994). In this current case, the Veteran contends that he was exposed to radiation while working as an antenna maintenance specialist during his service. This activity is not listed under §3.309(d)(3)(ii) as a radiation-risk activity. Therefore, the Veteran is not warranted service connection under the first theory. Regarding whether the Veteran is warranted presumptive service connection under §3.311, the Veteran is claiming that he incurred an eye disability due to radiation exposure. Eye disability is not one of the diseases listed as a radiogenic disease. Additionally, the Veteran has not submitted or cited any competent scientific or medical evidence that indicates his eye disability as radiogenic disease. Thus, the Veteran is not warranted service connection under §3.311. The Board will now consider whether the Veteran is entitled to service connection on a direct basis under §3.303. The Veteran contends that he is beginning to develop cataracts from the radiation dust he was exposed to during service and needs treatment. The current record does not show that the Veteran has been diagnosed with any eye condition. The private medical records submitted make no indication of any complaints, diagnosis, and treatment of an eye disability. The Board acknowledges the Veteran’s assertions that he has an eye condition. Although lay persons are competent to provide opinions on some medical opinions, determining the etiology of an eye condition, especially cataracts, falls outside the realm of common knowledge of a lay person. The Veteran has not demonstrated the medical expertise for this matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). Based on the evidence of the record, the Board finds that there is no current disability. As there is no current disability, by regulation, service connection cannot be warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board finds that the weight of the evidence is against a finding of service connection for an eye disability. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. 2. Entitlement to service connection for peripheral neuropathy of bilateral upper extremities and lower extremities. The Veteran contends that his peripheral neuropathy condition is due to being exposed to radiation while working as antenna maintenance specialist during his service. As mentioned before, the Veteran does not qualify as an atomic veteran under §3.309 and does not claim to have a radiogenic disease under 3.311. Thus, he is not warranted service connection for his peripheral neuropathy under those provisions. The Board has also considered whether the Veteran is entitled to presumptive service connection under §3.309(a). The evidence of the record does not show that the Veteran’s peripheral neuropathy manifested during his service or within a year of separation from service. Private medical records beginning in 2011 are the first indications of complaints, treatment, and diagnosis of his peripheral neuropathy. Thus, service connection under §3.309a is not warranted. The consideration now is whether the Veteran is entitled to service connection under §3.303(a). The evidence of the record does establish that the Veteran has a current disability of peripheral neuropathy of his upper and lower extremities. The private treatment records dated from April 2011 to October 2012 detail the Veteran complaints of numbness in his hands and legs, and being treated for peripheral neuropathy. In regard to an in-service injury or event, in a May 1973 service treatment record, it was noted that the Veteran “works with radiation”. His military personnel records state that the Veteran was responsible for “installation, removal, and maintenance of ground radio, microwave and tropospheric scatter antennas, including waveguides and transmission lines.” In response to this notation, the RO requested the National Personnel Records Center (NPRC) to furnish the DD Form 1141 (Record of Occupational Exposure to Ionizing Radiation) and records regarding radiation exposure during the Veteran’s service. See April 2013 VA 21-3101 Request for Information. NPRC responded that no DD Form 1141 could be found in the record. Further, the response indicates that if there was a DD Form 1141 in the record, it would have been sent with the service treatment records when the Veteran filed a claim at separation. A review of the service treatment records and military personnel records show no presence of a DD Form 1141. In the September 2013 Memo on the Formal Finding on the Unavailability of DD Form 1141, it was determined that the records regarding radiation exposure could not be obtained and that further attempts were deemed futile as all efforts have been exhausted. In the September 2013 VA 21-0820 (Report of General Information), it was noted that there was an attempt to notify the Veteran through telephone of the inability to obtain documentation regarding his claimed radiation exposure. In a September 2013 correspondence, the RO notified the Veteran of the inability to locate DD Form 1141. The RO also notified the Veteran that he could provide any relevant documentation or alternate sources of evidence regarding his claimed radiation exposure. Based on the notation in the service treatment records and the nature of the Veteran’s occupation, the Board will give the Veteran the benefit of the doubt and determine that an in-service event involving radiation exposure occurred. Regarding whether there is a nexus between the Veteran’s current disability and his service, the service treatment records are absent any complaints, treatment, or diagnosis of peripheral neuropathy. The Veteran’s upper and lower extremities were noted as normal in his separation examination. The Veteran does not contend that his peripheral neuropathy began in or shortly thereafter service. The sole contention is that his peripheral neuropathy is due to radiation exposure. There is no competent medical evidence of the record that supports, or even indicates, a nexus between peripheral neuropathy and the Veteran’s service. The Board acknowledges the Veteran’s assertions that his peripheral neuropathy is due to being exposed to radiation. Although lay persons are competent to provide opinions on some medical opinions, the relationship between peripheral neuropathy and radiation exposure is a complex medical question that falls outside the realm of the common knowledge of a lay person. The Veteran has not demonstrated the medical expertise required for this matter. See Jandreau, 492 at 1376. The Board acknowledges that the Veteran was not given a VA examination for this claim. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors to consider: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor, in particular, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that an examination is not necessary because there is no evidence of the record that indicates a link between his current disability and his service. The Board acknowledges that lay evidence may satisfy the third element in McLendon. However, precedential case law recognizes that it may not be possible to establish a nexus where the lay evidence is too general and conclusory to satisfy the statutory standard. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). The Board finds no reasonable possibility that a VA examination would aid in substantiating the service connection claim for peripheral neuropathy of the upper and lower extremities. See 38 U.S.C. § 5103A (a). The weight of evidence is against a finding that peripheral neuropathy had its onset either during active service or within one year of separation from active service. The evidence likewise fails to support the conclusion that it resulted from possible radiation exposure, and competent evidence even suggesting that peripheral neuropathy may be associated with service is not of record. The Veteran's general and conclusory assertions that his peripheral neuropathy is related to his radiation exposure in service are insufficient even under the low threshold of McLendon to trigger VA's duty to provide an examination The Board finds that the weight of the evidence is against a finding of service connection for peripheral neuropathy of the upper and lower extremities. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Syesa Middleton, Associate Counsel