Citation Nr: 20003568 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 13-20 739 DATE: January 16, 2020 ORDER Entitlement to service connection for bilateral upper neuropathy, including as secondary to service-connected hepatitis C, is denied. Entitlement to service connection for bilateral lower neuropathy, including as secondary to service-connected hepatitis C, is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran’s bilateral upper neuropathy began during active service or is otherwise related to service or that it was caused or aggravated by his service-connected hepatitis C. 2. The preponderance of the evidence of record is against finding that the Veteran’s bilateral lower neuropathy began during active service or is otherwise related to service or that it was caused or aggravated by his service-connected hepatitis C. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral upper neuropathy, including as secondary to service-connected hepatitis C, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for bilateral lower neuropathy, including as secondary to service-connected hepatitis C, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1974 to June 1976. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office. The Board previously remanded this matter in July 2016 and March 2018. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Proving this generally requires competent medical or lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Alternatively, a disability which is proximately due to or the result of a service-connected disease or injury may be service connected. 38 C.F.R. § 3.310(a). Proving secondary service connection requires competent medical or lay evidence of; (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability, showing that the current disability was proximately due to or the result of the service-connected disability, or was aggravated beyond its natural progression by the service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). In determining whether service connection is warranted, VA is responsible for deciding whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board acknowledges that the Veteran’s VA treatment records reflect his current diagnosis of neuropathy and years of treatment. Accordingly, the Board notes that the Veteran has a current disability. Concerning direct service connection, there is no evidence that the Veteran exhibited any signs or symptoms of neuropathy during service. Furthermore, there is no evidence in his service records diagnosing a neuropathic condition. There is no evidence in any of his examinations that his neuropathy is directly related to military service and no competent and probative evidence of record to the contrary. Thus, the Board finds that service connection cannot be granted on a direct basis for the Veteran’s bilateral upper or lower neuropathy as there is no evidence of an in-service injury, event, or illness causing those disabilities. However, the Veteran is service-connected for hepatitis C. See January 2011 Rating Decision. He asserts that his neuropathy stems from his hepatitis C. Therefore, the only question is whether his hepatitis C caused or aggravated his bilateral upper neuropathy and/or bilateral lower neuropathy. The Board acknowledges that there are some records indicating a causal relationship between his neuropathy and hepatitis C. Specifically, an examination in January 2011 notes that the Veteran has neuropathy and that it could be related to his hepatitis C and some post-treatment records noting that the neuropathy’s etiology was “likely related to hepatitis C.” See January 2011 VA Compensation and Pension (C&P) Examination; September 2009 – April 2010 VA Neurology Outpatient Notes. However, there is other, more probative evidence of record reflecting that the Veteran’s neuropathy has other etiologies. First, there is evidence of record from the Veteran’s treating physician stating that his neuropathy is likely related to a history of alcoholism. See June 2010 VA Neurology Outpatient Note. Second, the Veteran’s examination in December 2010 reflects that the Veteran’s condition is less likely than not caused by or a result of in-service illness because the examiner found no association or evidence of any relationship in medical literature of peripheral neuropathy as a complication of hepatitis C. See December 2010 VA C&P Examination. The Veteran was again examined in October 2011, at which time the examiner found it less likely than not that his neuropathy was proximately due to or the result of his hepatitis C. The examiner found that the Veteran’s upper neuropathy was due to his carpal tunnel syndrome, for which he was treated in 2010 and his lower neuropathy was more likely due to alcoholism. As a rationale, the examiner stated that hepatitis C was not associated with carpal tunnel syndrome and that alcohol is one of the more common causes of peripheral neuropathy of the lower extremities in addition to diabetes and HIV infection. The examiner also cited to a study of 340 patients with hepatitis C, which found that only 9 percent of patients exhibited sensory neuropathy, while peripheral neuropathy was detected in 32 percent of 107 consecutively examined alcohol abusers in one report. Finally, the Veteran was examined again in May 2017. At this examination, he was noted to be diabetic and have a history of alcohol abuse. The examiner found that both the diabetes and alcohol abuse history were contributory to neuropathy. He found that diabetic symmetric neuropathy can manifest before the patient becomes overly diabetic clinically. The examiner reasoned “[w]hile [the Veteran] does have hepatitis C, a neuropathy related to hep C would likely present as a mononeuritis multiplex type of picture, rather than a distal symmetric neuropathy.” See May 2017 VA C&P Examination. He also noted that because the Veteran’s neuropathy is due to diabetes, his hepatitis C could not have aggravated the neuropathy. Id. The Board finds that these opinions had the proper factual foundations and are of great probative value. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that these October 2011 and May 2017 C&P examinations provided extensive and adequate rationale for their opinions, and their probative weight far outweighs that of the January 2011 C&P examination and the 2009-2010 neurology notes, which did do not provide adequate rationales as to their conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The October 2011 and May 2017 C&P examinations provide detailed rationale for their findings which is based on an accurate understanding of the Veteran’s medical history and is consistent with the other medical evidence of record. The Board therefore affords this medical evidence the greatest probative weight, and finds that the medical evidence weighs against finding that neuropathy was caused or aggravated by hepatitis C. The Board notes that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of a disability or symptoms of a disability subject to lay observation. 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006). While the Board has considered the Veteran’s lay statements, the Board finds that the reasoned opinions of the VA examiners are more probative than his lay assertions because the VA examiners’ opinions were provided by competent medical professionals with specialized knowledge in such medical matters, and their opinions are consistent with the competent and credible objective evidence of record and medical literature on the topic. Hence, a preponderance of the evidence is against the Veteran’s claim for service connection for bilateral upper neuropathy and bilateral lower neuropathy, including as secondary to his service-connected hepatitis C. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule does not apply and thus service connection is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Mary E. Rude Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and it does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.