Citation Nr: 20021864 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 15-43 528 DATE: March 27, 2020 ORDER Service connection for peripheral neuropathy in the upper extremity (claimed as neuropathy/nerve damage in the hands, arms, and elbows) is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran is currently diagnosed with peripheral neuropathy in the upper extremities, including carpal tunnel syndrome (CTS); symptoms of the peripheral neuropathy were not chronic in service, were not continuous since service separation, and did not manifest to a compensable degree within one year of service separation; the currently diagnosed peripheral neuropathy is not related to service. 2. The Veteran is not rendered unable to obtain or maintain substantially gainful employment as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy in the upper extremities, including CTS, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for a TDIU have not been met. 38 U.S.C.§§1155, 5103, 5103A, 5107; 38C.F.R.§§3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from July 1974 to July 1976. This matter is on appeal from a September 2015 rating decision. In the September 2018 decision, the Board denied service connection for peripheral neuropathy of the upper extremities (claimed as neuropathy/nerve damage in the hands, arms, and elbows) and a TDIU. The Veteran appealed this portion of the Board's decision to the United States Court of Appeals for Veterans Claims (Court or CAVC). The Board's decision was vacated pursuant to an October 2019 Joint Motion for Remand (Joint Motion or JMR) on the basis that the Board did not provide an adequate statement of reasons or bases resolving the discrepancy between the Veteran’s lay statements and the June 2018 VA addendum opinion rationale. The Joint Motion noted that the negative June 2018 VA medical opinion was based, in part, on the reasoning that the Veteran’s post-service work history, including decades of physical labor, increased the risk of developing peripheral neuropathy and/or CTS in the upper extremities; however, the Board did not address the Veteran’s August 2018 lay statement submitted after the June 2018 VA medical opinion denying physical labor as part of the job duties. The case now returns to the Board. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a direct basis when there is competent, credible evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Holton v. Shinseki, 557 F. 3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303(a), (d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Because the current diagnosis of peripheral neuropathy of the upper extremities, as an organic disease of the nervous system, is listed as a chronic disease under 38 C.F.R. § 3.303(b), the presumptive service connection provisions are applicable. 1. Service Connection Analysis for Upper Extremity Peripheral Neuropathy The Veteran contends that the current peripheral neuropathy of the upper extremities is related to crawling on his hands and knees and performing repair work as a mechanic during service. He seeks service connection in this basis. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding of a neurological injury or disease affecting the upper extremities during service, or that there were chronic symptoms of a neurological disorder during service. Service treatment records, which are complete, do not reflect any complaints, symptoms, diagnosis, or treatment for peripheral neuropathy or nerve-related problems in the upper extremities. Further, the Veteran’s upper extremities were found to be clinically normal during a May 1978 service separation examination. The weight of the evidence is against finding that the current upper extremity peripheral neuropathy symptoms were continuously manifested since service, the current upper extremity peripheral neuropathy was manifested to a compensable degree within one year of service separation, and the disability is otherwise causally or etiologically related to service. A January 2014 VA treatment record shows the earliest diagnosis for left upper extremity peripheral neuropathy, and a December 2013 VA treatment record reflects the Veteran reported left hand pain for the last six to eight months. Left upper extremity peripheral neuropathy was manifested approximately 38 years after service separation. The March 2016 VA treatment record shows the earliest diagnosis for right upper extremity peripheral neuropathy, and an August 2015 VA treatment record reflects the Veteran complained of symptoms of intermittent right-hand numbness, tingling, and weakness that had been present for the past month. Thus, the evidence shows that the earliest diagnoses for peripheral neuropathy in the left and right upper extremities nearly 38 and 40 years, respectively, after separation from service and nearly 37 and 39 years, respectively, outside of the applicable presumptive period. While the Veteran is competent to report experiencing symptoms of peripheral neuropathy at any time, the Board finds that the more recent reports of peripheral neuropathy symptoms that reportedly began within one or two years after service separation are outweighed by other, more contemporaneous lay and medical evidence of record, so are not credible. The Veteran’s statements, along with other lay statements submitted in support of the claim, that assert symptoms of peripheral neuropathy had their onset within two years of service separation are inconsistent with the Veteran’s own statements made for treatment purposes. December 2013 and August 2015 VA treatment records show the Veteran’s reported history when seeking treatment for such symptoms of a recent onset of neuropathy symptoms. Statements made for treatment purposes are particularly trustworthy because an individual has an incentive to report accurately the history of onset of symptoms in order to receive proper care. The weight of the evidence is against finding that the current peripheral neuropathy, which was manifested many years after service, is otherwise causally or etiologically related to service. The June 2018 VA examiner noted that the Veteran is currently diagnosed with carpal tunnel syndrome and peripheral neuropathy due to (non-service-connected) diabetes in the upper extremities; however, it cannot be determined which of the Veteran’s symptoms are attributable to which disorder as both carpal tunnel syndrome and peripheral neuropathy can cause all of the Veteran’s upper extremity symptoms and findings. Regardless, the VA examiner opined that it is less likely than not that the currently diagnosed peripheral neuropathy is etiologically related to service. The VA examiner explained that service treatment records do not contain complaints for numbness, tingling, or pain, and that the May 1978 service separation examination report does not reflect abnormal findings in the upper extremities. The VA examiner noted that post-service treatment records do not reflect complaints of numbness, tingling, and/or pain in the left and right upper extremities until 2013 and 2015, respectively. Furthermore, the VA examiner explained that the Veteran’s documented post-service work history includes decades of physical labor working on a farm and in a boatyard, and working as a truck driver and in plywood construction, any and all of which increased the Veteran’s risks of developing peripheral neuropathy and/or carpal tunnel syndrome in the upper extremities. Accordingly, the VA examiner concluded that the Veteran’s current peripheral neuropathy did not have its onset during service and developed decades after service separation, and is not etiologically related to active service, including to the frequent crawling during service. Because VA examiner has medical expertise and training, had adequate and accurate facts and data on which to base the medical opinion, and provided sound rationale for the medical opinion, the VA medical opinion is of significant probative value. In an August 2018 statement, the Veteran asserted that he did not recall performing any work after service that required heavy lifting or the use of force or strength and purportedly clarified his post-service job history and duties; however, this account is inconsistent with, and outweighed by, earlier statements made by the Veteran when seeking compensation in connection with a Social Security disability claim. When providing a work history report to the SSA in 2013, the Veteran reported a history of occupations characterized by physical labor and reported that the jobs required lifting objects as heavy as 50 pounds and frequently required lifting 25 pounds. The Veteran’s own descriptions of post-service jobs with physical labor routinely requiring heavy lifting and/or the use of force and strength as reported to the SSA was closer in time to the performance of those jobs, and was years before filing the VA disability claim for compensation, so it is deemed credible and of significant probative value. The Veteran’s more recent account that post-service jobs did not involve physical labor is not credible, so is of no probative value. The record also includes an August 2018 private medical opinion, wherein Dr. R.C. opines that the Veteran’s peripheral neuropathy in the upper extremities is directly caused by service. Dr. R.C. explained that the Veteran’s current peripheral neuropathy has a connection with the line of work done over time in service as crawling on the hands and knees can cause damage to the nerve and neuropathy; however, in addition to stating this suggestion of causation in speculative terms, Dr. R.C. did not address the Veteran’s peripheral neuropathy in the context of the case-specific specific occupational and medical history, so omitted the significance of relevant facts. Dr. R.C. did not address whether the current peripheral neuropathy was caused by the Veteran’s post-service occupational history or was the result of the non-service-connected diabetes mellitus. In light of the incomplete occupational and medical history contained in the August 2018 private opinion, and the speculative language with no case specific fact context, the Board finds that Dr. R.C.’s opinion is of no probative value. The result is that the weight of the medical opinion evidence is against a nexus to service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). Based on the foregoing, the Board finds that the weight of the lay and medical evidence of record is against finding that the criteria for service connection for peripheral neuropathy in the upper extremities have been met; therefore, the appeal must be denied. 2. TDIU Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38U.S.C.§1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38C.F.R.§3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the rating schedule prescribes a 100 percent evaluation. 38C.F.R.§3.340(a)(2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38C.F.R.§4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70percent or more. 38 C.F.R.§4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38C.F.R.§4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38C.F.R.§4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under §4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in §4.16(a). 38C.F.R.§4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38C.F.R.§4.16(b) by the Director of Compensation and Pension (C&P) is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Cf. Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (applying principles announced in Wages to 38 C.F.R.§3.321(b) extraschedular adjudication, namely, Director of C&P decision is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. After a review of all the evidence, lay and medical, the Board finds that the evidence does not suggest that the Veteran has not been rendered unable to obtain or maintain substantially gainful employment due to service-connected disabilities to warrant referral for adjudication by the Director of C&P. For the relevant period from March 12, 2015 (date of TDIU claim), the Veteran has been awarded service connection for bilateral tinnitus (10 percent disabling) and bilateral hearing loss (0percent disabling). As such, the service-connected disabilities do not meet the combined rating criteria for a TDIU under 38C.F.R. § 4.16(a) for any period from March 12, 2015. Having considered all the evidence of record, lay and medical, the Board finds that referral under 38C.F.R.§4.16(b) to the Director of C&P for consideration is not warranted for any period. In a March 2015 statement, the Veteran asserted that he had not been employed for the last three years due to peripheral neuropathy in the upper extremities, for which service connection has been denied in the Board’s instant decision above. A November 2015 Social Security Administration (SSA) adjudication reflects the Veteran claimed being unable to work due to non-service-connected disorders including diabetes mellitus, hypertension, bilateral carpal tunnel syndrome, chronic kidney disease, and peripheral neuropathy; the November 2015 SSA adjudication noted that the service-connected bilateral hearing loss had only had minimal effect on the Veteran’s ability to perform work-related activities. In a September 2017 Application for Increased Compensation Based on Unemployability, the Veteran claims that he became too disabled to work in November 2011 due to the non-service-connected upper extremity neuropathy and the service-connected bilateral hearing loss. As discussed above, a TDIU must be based on solely on service-connected disabilities. Based on the foregoing, the Board finds that the weight of the lay and medical evidence demonstrates that the Veteran’s service-connected disabilities did not prevent obtaining or maintaining substantially gainful employment for any period from March12, 2015. As the preponderance of the lay and medical evidence is against a finding for a TDIU, the claim must be denied. See 38 U.S.C. § 5107; 38C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ferguson, 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.