Citation Nr: 20021183 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 18-41 528 DATE: March 24, 2020 ORDER Entitlement to service connection for glaucoma is denied. Entitlement to service connection for Parkinson's disease is denied. Entitlement to service connection for right upper extremity peripheral neuropathy is denied. Entitlement to service connection for left upper extremity peripheral neuropathy is denied. Entitlement to service connection for left lower extremity peripheral neuropathy is denied. Entitlement to service connection for right lower extremity peripheral neuropathy is denied. FINDINGS OF FACT 1. The Veteran’s glaucoma did not have its onset during active service and is not otherwise related to active service. 2. The Veteran’s Parkinson’s disease did not have its onset during active service and is not otherwise related to active service. 3. The Veteran’s right upper extremity peripheral neuropathy did not have its onset during active service and is not otherwise related to active service. 4. The Veteran’s left upper extremity peripheral neuropathy did not have its onset during active service and is not otherwise related to active service. 5. The Veteran’s left lower extremity peripheral neuropathy did not have its onset during active service and is not otherwise related to active service. 6. The Veteran’s right lower extremity peripheral neuropathy did not have its onset during active service and is not otherwise related to active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for glaucoma have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for entitlement to service connection for Parkinson's disease have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for entitlement to service connection for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 4. The criteria for entitlement to service connection for left upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 5. The criteria for entitlement to service connection for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 6. The criteria for entitlement to service connection for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1955 to March 1957. This case is before the Board of Veterans’ Appeals (Board) on appeal from December 2015 and April 2016 rating decisions. In October 2019 the Board remanded the case to the RO for further development and adjudicative action. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(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”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal “presumption” by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. Unfortunately, the Veteran’s service records were destroyed in a fire at the National Personnel Records Center in St. Louis, Missouri in 1973. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board’s analysis of the Veteran’s claims has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an “adverse presumption” where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant’s allegation of injury or disease in service in these particular cases). 1. Entitlement to service connection for glaucoma The Veteran contends that his glaucoma is related to active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of glaucoma, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Per the October 2019 Board Remand, the Veteran underwent a November 2019 VA examination for eye conditions. The report indicates diagnoses of bilateral open angle glaucoma, right eye pseudophakia, and left eye senile cataract, all on January 24, 2020, noting the diagnosis of glaucoma for about 6-7 years. The Veteran reported that during service he worked as infantry, denied direct ocular trauma, and stated that, while he was in service, he did not have any events affecting his eyes. The examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that the Veteran’s diagnosed conditions are age-related and expected on patients over the age of 40. Open angle glaucoma is due to degeneration of the drainage system of the aqueous humor on the eye leading to an increase in intraocular pressure and optic nerve atrophy affecting vision. Pseudophakia is due to cataract surgery and senile cataract is due to loss of transparency on the crystalline lens due to denaturation of lens proteins as a normal aging process of the eye. In the case history the Veteran stated that he had no events affecting his eyes nor any ocular trauma while he was on service. The examiner explained that due to these reasons and other conditions diagnosed upon examination that the Veteran’s glaucoma is due to the normal aging processes of the eyes and that it is not probable and is unlikely that his condition is due to service. The Veteran first filed his claim for glaucoma in February 2015, despite contending that his condition began in service, almost 58 years after separation from service in March 1957. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Based upon the evidence of record, the Board finds that the Veteran’s glaucoma condition did not manifest during service and that the preponderance of the evidence fails to establish that a present condition is etiologically related to service. There is no competent evidence of any related symptoms or treatment during service, and the competent evidence of record does not attribute the Veteran’s current glaucoma condition to any event, injury, or illness associated with service. For the foregoing reasons, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for glaucoma. Consequently, the benefit of the doubt doctrine does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for Parkinson's disease The Veteran contends that his Parkinson’s disease is related to active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of Parkinson’s disease, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). VA treatment records indicate treatment for Parkinson’s disease. A November 2015 record indicates “Parkinson’s disease of about 5 years evolution.” Per the October 2019 Board remand, the Veteran underwent a VA examination for Parkinson’s disease in November 2019. The report indicates a diagnosis of Parkinson’s disease from 2008. The examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that both the right upper extremity neuropathy and Parkinson’s disease are not related to service. He stated that there is evidence of tremors first noted in 2008 adding to the Veteran’s testimony, confirming the emergence of tremors 51 years after service. The examiner stated that the Veteran’s neuropathy was found to be generalized, and that he has been diabetic since at least 2013, so it is more probably due to diabetes mellitus Type II and not to Parkinson’s disease. The examiner also noted that although the Veteran is a Korean era Veteran, he was never in Korea and there is no evidence of exposure to toxic substances. The Veteran first filed his claim for Parkinson’s disease in February 2015, despite contending that his condition began in service, almost 58 years after separation from service in March 1957. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Based upon the evidence of record, the Board finds that the Veteran’s Parkinson’s disease condition did not manifest during service and that the preponderance of the evidence fails to establish that a present condition is etiologically related to service. The Veteran has not asserted that he was exposed to herbicide agents during service, and the record does not indicate exposure. There is no competent evidence of any related symptoms or treatment during service, and the evidence of record does not attribute the Veteran’s Parkinson’s disease to any event, injury, or illness associated with service. For the foregoing reasons, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for Parkinson’s disease. Consequently, the benefit of the doubt doctrine does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for right upper extremity peripheral neuropathy 4. Entitlement to service connection for left upper extremity peripheral neuropathy 5. Entitlement to service connection for left lower extremity peripheral neuropathy 6. Entitlement to service connection for right lower extremity peripheral neuropathy The Veteran contends that his bilateral upper and lower peripheral neuropathy is related to active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of bilateral upper and lower peripheral neuropathy, the preponderance of the evidence weighs against finding that the Veteran’s diagnoses began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). VA treatment records indicate treatment and complaints for peripheral neuropathy. Per the October 2019 Board remand, the Veteran underwent a VA examination for peripheral neuropathy in November 2019. The report indicates diagnoses of clinical evidence of bilateral peripheral neuropathy of upper and lower extremities from 2019. The examiner noted that the Veteran reported a history of bilateral hand and feet numbness for the past 10 years, and that he has been using medication with fair to poor response. The Veteran denied a history of diabetes or exposure to chemicals including insecticides during service. The examiner opined that the conditions claimed were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that there is no evidence found of a condition during service in available records that could correlate with the etiology of the peripheral neuropathy seen upon examination. The examiner noted that the Veteran stated that the condition had onset 10 years ago, and neurology service described the condition as idiopathic. The Veteran first filed his claim for peripheral neuropathy in February 2015, despite contending that his condition began in service, almost 58 years after separation from service in March 1957. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Based upon the evidence of record, the Board finds that the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities did not manifest during service and that the preponderance of the evidence fails to establish that a present condition is etiologically related to service. There is no competent evidence of any related symptoms or treatment during service, and the medical evidence does not attribute the Veteran’s current peripheral neuropathy of the bilateral upper and lower extremities to any event, injury, or illness associated with service. For the foregoing reasons, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for bilateral upper and lower peripheral neuropathy. Consequently, the benefit of the doubt doctrine does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Labi, 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.