Citation Nr: 19159595 Decision Date: 07/31/19 Archive Date: 07/31/19 DOCKET NO. 1760434 DATE: July 31, 2019 ORDER Service connection for degenerative arthritis of the lumbar spine is denied. Service connection for peripheral neuropathy (PN) of the right upper extremity (RUE) is denied. Service connection for PN of the left upper extremity (LUE) is denied. Service connection for PN of the right lower extremity (RLE) is denied. Service connection for PN of the left lower extremity (LLE) is denied. Service connection for chronic obstructive pulmonary disease (COPD) is denied. Service connection for gastroesophageal reflux disease (GERD) is denied. Service connection for dental/occlusal trauma, to include buccal cavity tearing, is denied. FINDINGS OF FACT 1. The Veteran’s degenerative arthritis of the lumbar spine, first diagnosed many years after service, was not caused by or incurred in service, to include as secondary to an in-service shrapnel wound or as due to an in-service spinal tap for malaria. 2. Right median neuropathy (RUE) was first manifested many years after service, and is not etiologically related to any disease, injury, or event in service, to include as due to herbicide exposure. 3. A competent diagnosis of PN of the LUE is not of record. 4. A competent diagnosis of PN of the RLE is not of record. 5. A competent diagnosis of PN of the LLE is not of record. 6. A chronic respiratory disorder, COPD, was first diagnosed many years after service and is not causally or etiologically related to any disease, injury, or event in service, to include as due to herbicide exposure. 7. GERD was first diagnosed many years after service and is not causally or etiologically related to any disease, injury, or event in service, to include as due to herbicide exposure. 8. The Veteran does not have a dental disability resulting from combat wounds or service trauma and his claimed dental disabilities are not subject to service-connected compensation. CONCLUSIONS OF LAW 1. Degenerative arthritis of the lumbar spine did not manifest during service, may not be presumed to have been incurred therein, and is unrelated to service, to include as secondary to herbicide exposure, or as secondary to a left sacroiliac joint shrapnel wound or as a residual of malaria. 38 U.S.C. § § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3,303, 3.307, 3.309, 3.310 (2018). 2. PN of the RUE did not manifest during service, may not be presumed to have been incurred therein, and is unrelated to service, to include as due to herbicide exposure, or as secondary to a service-connected disorder. 38 U.S.C. § § 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3,303, 3.307, 3.309, 3.310 (2018). 3. The criteria for service connection for PN of the LUE are not met. 38 U.S.C. § § 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3,303, 3.307, 3.309, 3.310 (2018). 4. The criteria for service connection for PN of the RLE are not met. 38 U.S.C. § § 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3,303, 3.307, 3.309, 3.310 (2018). 5. The criteria for service connection for PN of the LLE are not met. 38 U.S.C. § § 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3,303, 3.307, 3.309, 3.310 (2018). 6. A chronic respiratory disorder, diagnosed as COPD, was not incurred in or aggravated during service, to include as due to herbicide exposure. 38 U.S.C. § § 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3,303, 3.307, 3.309 (2018). 7. GERD was not incurred in or aggravated during service, to include as due to herbicide exposure. 38 U.S.C. § § 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3,303, 3.307, 3.309 (2018). 8. The criteria for entitlement to service connection for dental disability for purposes of entitlement to VA compensable are not shown. 38 U.S.C. § § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3,303, 3.381, 4.150 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to September 1970, to include service in the Republic of Vietnam. He is a recipient of numerous awards and commendations, to include the Purple Heart Medal. Service connection is in effect for many conditions, to include a painful left sacroiliac joint scar and malaria. For each disorder on appeal, the Veteran has contended that the condition either originated during service, is secondary to a serviced-connected disorder, or is due to his exposure to Agent Orange while in Vietnam. See, e.g., his January 2015 notice of disagreement (NOD) with the June 2014 rating decision from which this appeal ensued. The Veteran has also expressed that his low back disorder resulted from injury to his spine when he underwent a spinal tap during service due to being diagnosed with malaria. Initial Considerations The Veteran’s claim file documents that the Veteran served in Vietnam, and as such, service connection is presumed for the disabilities listed in 38 C.F.R. § 3.309(e) (2018). Upon review, the Board finds the only issues currently on appeal listed in 38 C.F.R. § 3.309(e) (2019) are the Veteran’s claims for PN of the bilateral upper and lower extremities. The Veteran has not provided competent or persuasive evidence to support a connection between any of his other claimed disabilities and his exposure to AO/herbicides. As such, the Board will only address in detail whether a presumption based on herbicide exposure is warranted for the claims for PN of the bilateral upper and lower extremities. Service Connection – In General Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2018). 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) (2018). 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. 38 U.S.C. § 1112 (2012); 38 C.F.R. § 3.304 (2018). See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as degenerative arthritis and PN, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. § § 1101, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.§ 5107 (2012); 38 C.F.R. § 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Agent Orange – In General Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f) (2012) and 38 C.F.R. § 3.307(a)(6)(iii) (2018). Additionally, if a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, including early-onset PN, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) (2018) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (2018) are also satisfied. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309(e) (2018). The herbicide-presumptive diseases shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after 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) (2018). VA has determined there is no positive association between exposure to herbicides and any other condition for which VA has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 41442 -41449, 57586-57589 (1996). Notwithstanding the foregoing, 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) (2018); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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 the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); Gilbert, supra. 1. Entitlement to service connection for degenerative arthritis of the lumbar spine. When the Veteran filed his initial claim for service connection benefits in 1970, he filed a claim for wound of the back. The service treatment records (STRs) reflect that the Veteran reported various symptoms in December 1969, to include back pains. He was diagnosed with the flu. He was admitted to the hospital in May 1970 for a shrapnel wound over the lumbosacral area. There is also an inservice report of malaria (for which the Veteran claims that he underwent a spinal tap). Such is conceded as a likely occurrence although not specifically noted in the STRs. When examined by VA in April 1971, the Veteran complained of back pains and stiffness and numbness in the left lower leg, as well as a painful shrapnel wound scar. Lumbar spine X-ray at that time showed a metallic foreign body superimposed over the posterior aspect of the left sacroiliac joint at the level of first sacral segment. The lumbar vertebral bodies were normal in stature, alignment, texture, and density and the disc spaces were well maintained. No chronic back disorder was diagnosed. Service connection was established for left sacroiliac scar in a June 1971 rating action. Additional post service records include additional VA lumbar X-ray in August 1975 which was negative, other than an “incidental” notation of rectangular metallic foreign body within the soft tissue posterior to the left sacroiliac joint. An additional privat record from July 1983 reflects that the Veteran was under treatment for back and abdominal pain. The physician wrote the note requesting that the Veteran be granted sick leave for his pain which had become more pronounced in the past two weeks. Subsequently dated VA records from 2013 to the present day reflect complaints of chronic lower back pain. VA examination was conducted in April 2014. The examiner reviewed the claim file, and there was an in-person examination. It was noted that the Veteran was claiming service connection for a lower back condition as secondary to retained shrapnel in 1970 or as secondary to an inservice spinal tap. The diagnosis was degenerative arthritis of the lumbar spine. The examiner opined that it was less likely than not that the Veteran’s low back disorder was due to his retained fragment wound in the sacroiliac joint or due to the inservice spinal tap. For rationale, he pointed out that medical literature did not support a direct cause and effect relationship between retained metallic foreign object in the soft tissues of the lumbar paraspinal area and/or a previous spinal tap, and the development of degenerative arthritis of the lumbar spine. The Veteran’s reports of chronic low back pain continue to the present day, but additional nexus opinion is not of record. What is of record is a plethora of statements made by family and friends, many who have known the Veteran for many years. Many statements attest to the fact that the Veteran has complained of lower back pain ever since his return from service. Based on the foregoing, the Board finds that the preponderance of the evidence is against a causal relationship between the Veteran’s service, to include the in-service shrapnel wound and an inservice spinal tap, and his current low back disability. The 2014 VA examiner opined that the shrapnel wound, as shown by the evidence, would not lead to the degenerative changes causing the Veteran’s current limitations of function in the low back. Moreover, his inservice spinal tap did not result in lower back degenerative changes. For rationale, the examiner pointed to medical literature which did not support the Veteran’s contentions. The Board finds that the 2014 specialist's report, with the opinion as summarized above, is the evidence most probative to the etiology of the Veteran's low back disorder. The opinion is based on a review of the complete medical records and an in-person examination. Thus, it takes into account the medical evidence in favor and against the claim, and makes references to specific physical findings set forth throughout the medical record. This latter fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. These reasons include the facts that there is no X-ray evidence of long-term shrapnel-related damage or residuals of the inservice spinal tap and that the onset of chronic symptoms was well after service. Furthermore, while there is medical opinion expressing a negative nexus relationship between the current low back disability and the in-service shrapnel wound and/or spinal tap, there is no competent opinion of record indicating a positive relationship between the two. The Board notes that the Veteran and his friends and family, as lay people, are not competent to provide such an opinion. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994) and King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Additionally, the Veteran has not identified any other in-service injury or event that would have caused his current low back disability. There is no evidence indicating that arthritis had onset within one year of the Veteran’s discharge, warranting a service-connection award under the provisions of 3.309(a) (2018), and a continuity of symptoms since service is not shown. To the extent the Veteran reports longstanding back pain, as noted above, two complaints of back pain over the years post service (in 1971 and 1983), before chronic complaints were noted in 2013 and thereafter, does not reflect a continuity of symptomatology since discharge. Accordingly, as the preponderance of the evidence is against a finding that the Veteran’s low back disability was caused by or incurred in service, the “benefit of the doubt” rule is not applicable, and the Board must deny the claim. See 38 U.S.C. § 5107(b) (2012); Gilbert, supra. 2. Entitlement to service connection for PN of the RUE. The STRs are negative for report of, treatment for, or diagnosis of PN of the RUE. The evidence shows that while a history of PN was noted upon VA records in 2013 and early 2014, actual diagnosis of PN of the RUE was not made until VA PN examination in April 2014. At that time, right median neuropathy of the wrist was diagnosed. This finding was corroborated upon VA electromyography in April 2016. The VA examiner in 2014 opined that the PN of the RUE was less likely than not related to any event or injury during service, to include the shrapnel wound injury to the sacroiliac area. For rationale, the examiner noted that medical literature did not provide evidence for a direct relationship between degenerative arthritis of the lumbar spine and a median neuropathy of the upper extremity. Furthermore, the examiner noted that if the right median neuropathy had resulted from in-service Agent Orange exposure, it would have resolved since the 1970s “because that is the natural evolution of agent orange related neuropathy.” The examiner’s opinions are uncontroverted by other competent medical evidence of record. The Board has considered the Veteran’s lay statements and acknowledges that the record also contains many statements of record as provided by friends and family attesting to the Veteran’s failing health since his discharge primarily due to the in-service shrapnel injury. He and his friends and family are competent to give evidence about what he/they have experienced or observed and are competent to report symptoms. Layno, supra. He, nor his family and friends, however, is competent to determine the nature and etiology of his PN of the RUE as none of them have been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he and his family and friends have received any special training or acquired any medical expertise in evaluating his PN. King, supra. Consequently, the Board gives more probative weight to the April VA opinion discussed above. As the weight of the evidence discussed above shows that PN of the RUE was not manifested in service or for many years after service, it follows that service connection as a chronic disease on a presumptive basis is not warranted pursuant to 38 U.S.C. §§ 1110, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018). Lastly, PN is included among the chronic diseases under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a) (2018). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nevertheless, any assertions of continuity of symptomatology pertaining to PN of the RUE are outweighed by the April 2014 VA examiner’s opinion and other competent evidence discussed above. For the reasons discussed above the preponderance of the evidence is against the claim for PN of the RUE and the benefit-of-the-doubt standard of proof does not apply. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018). 3. Entitlement to service connection for PN of the LUE, RLE, and LLE. As to issues of entitlement to service connection for PN of the LUE, RLE, LLE, review of the record, to include the STRs and post service private and VA records, is negative for actual diagnoses of PN of these extremities. Specific examination of these extremities by VA in April 2014 was negative for PN of any extremity, other than the RUE. Moreover, VA EMG testing in 2016 was also negative for PN of the LUE, RLE, and LLE. There is no medical evidence that controverts these negative findings. Thus, while the Veteran claims PN of these extremities, the evidence shows no current PN of the LUE, RLE, and LLE. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection requires a current disability). For the reasons stated above, the Board finds that the preponderance of the evidence is against the claims of service connection for PN of the LUE, RLE, and LLE, and those claims must be denied. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. Gilbert, supra. 4. Entitlement to service connection for COPD and GERD. The STRs reflect in-service treatment for acute respiratory disease, viral in nature, in February 1969. In April 1969, the Veteran was admitted to the hospital following three days of malaise and lethargy, headaches, and fever. It was noted that he had previously been treated for acute respiratory disease. Following treatment with penicillin and two days of hospitalization, his condition improved. The final diagnoses were exudative tonsillitis and acute respiratory disease. He was also seen during service for various complaints in December 1969, to include cramps in the abdomen. It was thought that his symptoms were manifestations of the flu with gastrointestinal (GI) manifestations. He had diarrhea in January 1970. He was treated with medication during a 12 day stay in the hospital. Upon separation examination in May 1970, no chronic respiratory disorder was noted upon examination of the lungs and chest. Moreover, no GI disorder was reported. Post service records from at least 2013 forward are positive for diagnoses of COPD and GERD. It was noted upon VA respiratory examination in April 2014 that COPD was initially diagnosed in 2003 by a private physician. It was the VA examiner’s opinion that COPD, first diagnosed in 2003, was less likely than not related to the in-service episode of acute respiratory disease and tonsillitis. For rationale, she pointed out that no chronic process was noted. Moreover, medical literature did not support that acute respiratory condition/exudative tonsillitis to be in the pathogenesis of COPD. The Board finds that the 2014 VA specialist's report, with the opinion as summarized above, is the evidence most probative to the etiology of the Veteran's COPD. The opinion is based on a review of the complete medical records and examination of the Veteran. Thus, it takes into account the medical evidence in favor and against the claim, and makes references to specific physical findings set forth throughout the medical record. This latter fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. There simply is no report of a chronic respiratory disorder during service or until many years thereafter, and, as indicated above, a VA physician has opined that such (COPD) is unrelated to his in-service respiratory condition which resolved without residuals. Similarly, while the VA examiner did not specifically address whether the Veteran’s GERD is of service origin, it is noted that no chronic GI disorder was diagnosed during service, and post service diagnosis of GERD is not shown until over 30 years later. It would be pure speculation to assert that GERD, first noted many years later, originated during service. As to the Veteran’s assertion that a VA examination should be conducted regarding this claim, the Board finds that such is unnecessary. The contemporaneous evidence of record clearly shows that GERD was not shown in service or until many years thereafter. A VA examination interpreting such medical findings is unnecessary in that it is impossible to overcome the logical conclusion, without contradictory evidence suggesting a nexus to service, that GERD first shown 30 years after service is unrelated to such service. Consequently, the Board finds that the absence of a diagnosis of respiratory and GI conditions, or persistent symptoms thereof, in the Veteran’s treatment records with the first evidence being many years after her discharge from active duty tends to disprove the assertion that the Veteran’s chronic COPD and GERD were incurred during period of active duty from 1968 to 1970. Service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service. Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). As to the lay statements of record, the Veteran and his friends and family are not competent to determine the nature and etiology of his COPD and GERD. Layno and King, supra. 5. Entitlement to service connection for dental/occlusal trauma, to include buccal cavity tearing. The STRs are negative for report of, treatment for, or diagnosis of dental conditions or abnormalities. This includes trauma to the mouth or teeth. Post service private records from 2008 through 2014 reflect treatment for various dental issues, to include prophylaxis, chronic periodontitis, extraction of an erupted tooth, installment of porcelain crowns, and scaling/root planing. In addition to the general laws and regulations regarding service connection claims already provided, there are additional laws and regulations which are specific to VA dental claims as follows. Under current VA regulations, service connection for VA compensation purposes is only available for specified dental and oral conditions which are specifically delineated in 38 C.F.R. § 4.150 (2018). A veteran may be entitled to service connection for other dental conditions not listed in section 4.150, including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C. § 1712 (2012); 38 C.F.R. §§ 3.381(b), 17.161 (2018). The dental and oral conditions which may be service connected for VA compensation purposes are delineated at 38 C.F.R. § 4.150, Diagnostic Codes (DCs) 9900-9916, and include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible. Compensation is also available for loss of teeth but only if such loss is due to loss of substance of body of maxilla or mandible due to trauma or due to disease such as osteomyelitis, but not due to the loss of the alveolar process as a result of periodontal disease. 38 C.F.R. § 4.150, DC 9913, Note. Applying the legal criteria set forth above to the facts in this case, the board finds that service connection for a dental disability for VA compensation purposes is not warranted. Applicable regulations specifically provide that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not disabling conditions for VA compensation purposes and may be considered service connected solely for the purpose of establishing eligibility for VA outpatient dental treatment. 38 C.F.R. § 3.381(b) (2018). Under these circumstances, the Board can find no basis upon which to award service connection for a dental disability for VA compensation purposes. The Board notes that the applicable legal criteria provide that replaceable missing teeth (i.e. with a bridge or denture) is not a disabling condition for VA compensation purposes and may be considered service connected solely for the purpose of establishing eligibility for VA outpatient dental treatment. 38 C.F.R. § 3.381 b) (2018). Moreover, 38 C.F.R. § 4.150, DC 9913, also specifically provides that loss of teeth can be service connected for compensation purposes only if the lost masticatory surface cannot be replaced by suitable prosthesis. In this case, the clinical record establishes that the appellant does not currently have a dental disability for which VA compensation may be paid and he has not contended otherwise. The appellant’s claim has been classified as service connection for dental/occlusal trauma, to include buccal cavity tearing. Post service records show treatment for various dental conditions as already summarized. As set forth above, however, periodontal disease and dental or erupted teeth are not disabilities for which VA compensation may be paid. Moreover, there was no inservice trauma to the mouth or teeth recorded. (Continued on the next page)   The post-service clinical records also establish that the appellant has undergone treatment such as restorations and porcelain crowns. Again, however, carious teeth and replaceable missing teeth are not disabling conditions for VA compensation purposes. In summary, absent any indication that the appellant has been diagnosed as having any compensable dental disability, the Board finds no basis for an award of service connection for a dental disability for VA compensation purposes and a VA examination addressing this claim is clearly unnecessary based on the circumstances shown, to include no inservice trauma to the mouth or teeth. Thus, entitlement to service connection must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith 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.