Citation Nr: 20048645 Decision Date: 07/21/20 Archive Date: 07/21/20 DOCKET NO. 16-14 253 DATE: July 21, 2020 ORDER Entitlement to service connection for peripheral neuropathy of the left upper extremity (LUE) is denied. Entitlement to service connection for peripheral neuropathy of the right upper extremity (RUE) is denied. FINDINGS OF FACT 1. The Veteran’s LUE peripheral neuropathy was not manifested during his active service, is not shown to be causally or etiologically related to his active service (to include his presumed in-service herbicide exposure), and is not shown to have manifested to a compensable degree within one year from the date of his separation from the military. 2. The Veteran has no current disability of a RUE peripheral neuropathy; the disorder was not manifested during his active service, is not shown to be causally or etiologically related to his active service (to include his presumed in-service herbicide exposure), and is not shown to have manifested to a compensable degree within one year from the date of his separation from the military. CONCLUSIONS OF LAW 1. The criteria for service connection for LUE peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2016). 2. The criteria for service connection for RUE peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to September 1968. This matter comes to the Board of Veteran’s Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Direct service connection requires: (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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). In addition, service connection for certain chronic diseases, including an organic disease of the nervous system such as neuropathy of the bilateral lower or upper extremities may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f); 38 C.F.R. §§ 3.307 (a), 3.309 (e). Presumptive herbicide exposure requires a presence on the ground or in the inland waterways of the country; service on deep-water offshore vessels is insufficient to trigger the presumption. 38 C.F.R. § 3.307 (a)(6)(iii); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for peripheral neuropathy of the left upper extremity is denied. 2. Entitlement to service connection for peripheral neuropathy of the right upper extremity is denied. The claim for service connection was received in November 2013. The Veteran’s service records reflect that the he served in the Republic of Vietnam and is presumed to have been exposed to herbicides and is entitled to the presumptive service connection provisions. The Veteran’s peripheral neuropathy did not become manifest to a compensable degree within one year of his last in-service exposure to herbicides. See 38 C.F.R. § 3.307 (a)(6)(ii). The Veteran separated from service in May 1969. As discussed in detail below, evidence establishes that the Veteran first experienced bilateral peripheral neuropathy symptoms around 1995 as noted in the report of a December 2015 VA Examination. Accordingly, under 38 C.F.R. § 3.307, presumptive service connection is not warranted based on herbicide exposure. However, the Veteran is not precluded from establishing service connection for peripheral neuropathy due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). There is no competent evidence of record demonstrating that peripheral neuropathy was present to a compensable degree within one year of discharge which would allow for the grant of service connection on a presumptive basis. There are no medical records produced during this period which indicate, in any way, that the Veteran has peripheral neuropathy at this time. The Veteran does not allege such a fact pattern. After a thorough review of the record, the Board finds that the preponderance of the evidence is against a finding of service connection for RUE or LUE peripheral neuropathy on a direct, presumptive, or secondary basis. In this regard, the Board notes that service treatment records (STRs) do not show complaints, findings, or treatment for RUE or LUE upper extremity pain or neuropathy. The Veteran’s September 1969 separation examination also indicated that he was clinically normal, without abnormalities of the upper extremities. In December 2009, the Veteran complained of pain in joint involving his upper arms. In November 2009, the Veteran complained that his left hand and left thumb has constant tingling, like it fell asleep. On VA examination in June 2010 for diabetes mellitus II, the Veteran reported peripheral neuropathy in both arms. However, the extremity exam noted all extremities were normal. In February 2011, the Veteran submitted private treatment records. Dr. C.C. diagnosed the Veteran with unspecific idiopathic peripheral neuropathy/pain in the upper arm. In August 2011, the Veteran complained of numbness in the left arm and fingers, cramping, prickling/tingling in the left arm and thumb. In April 2014, the Veteran underwent an VA examination for diabetes mellitus II. The Veteran reported diabetic peripheral neuropathy. However, the examiner on examination of his peripheral nerves, stated they were normal. Furthermore, the examiner found the reported left-hand thumb numbness is not secondary to diabetes mellitus II and diabetic neuropathy does not progress from hands to feet and presents symmetrically and bilaterally. The Veteran was diagnosed with isolated left thumb/arm numbness before he was diagnosed with neuropathy of the bilateral feet. In the VA examination in April 2015 for diabetes mellitus II, the Veteran reported peripheral neuropathy in both arms. He reported symptoms of decreased sensation in his hand in the median nerve distribution worse on the left than the right consistent with carpal tunnel syndrome. The Veteran also reports that he’s had these symptoms since about 2006 and prior to being diagnosed with diabetes. However, the examiner did not diagnose the Veteran with upper extremity diabetic peripheral neuropathy. In August 2015, the Veteran submitted private treatment records where he complained of left arm pain which goes from his shoulder to upper arm and forearm region. He describes having some tingling numbness that involves primarily his thumb and index finger. He denies having any constant weakness and has had no right upper extremity symptoms. Most recently, the Veteran underwent a VA examination for his peripheral nerves condition in January 2020. The Veteran reports progressive onset of symptoms of numbness and tingling in the bilateral upper extremities that he relates to his diabetes as he is already service connected for bilateral lower extremities neuropathy. He was later diagnosed with carpel tunnel syndrome and had subsequent corrective surgery for such. After which he states that his symptoms have worsened. It has always been worse on the left side. The examiner diagnosed the Veteran with carpel tunnel (median nerve) impingement with a date of diagnosis in 2015. The examiner also noted that there is no objective evidence of a right sided peripheral neuropathy on exam. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, related to his service-connected disability (diabetes mellitus II), or due to exposure to herbicide in Vietnam. In regard to direct service connection, the examiner provided rationale by stating that while the exam conducted is consistent with finding the condition of carpal tunnel and trigger finger noted in the Veteran’s medical records, there are no objective findings consistent with any other peripheral neuropathy condition of the upper extremities. The examiner noted that the 2015 VAMC progress note stating peripheral neuropathy spread to upper extremities is a subjective reported complaint and not confirmed by objective findings. In regard to secondary service connection, the examiner provided rationale by stating the two conditions are not medically related. The Veteran’s medical records note complaints of upper extremity neuropathy symptoms in 2015, which was eventually diagnosed as left sided carpal tunnel syndrome and treated accordingly. The examiner wrote that there is no clinical connection between diabetes and carpal tunnel syndrome. Therefore, the claimed disorder is a separate entity entirely from the service-connected condition and unrelated to it. The medical literature does not support a medical relationship. Thus, no nexus has been established. With regard to whether the Veteran’s RUE and LUE peripheral neuropathy is related to or aggravated by his service-connected diabetes mellitus II, the examiner provided a negative opinion and provided rationale by stating there is no clinical relationship between diabetes and carpal tunnel syndrome that is supported by current medical literature and research. Findings noted in the scholarly article published by Kim et. al. (2017), show no statistically significant relationship between diabetes and carpal tunnel syndrome. In light of the foregoing, the Board finds that service connection on a direct basis cannot be established. There is no objective evidence of right sided peripheral neuropathy disability. In pertinent part of the left peripheral neuropathy, while there is evidence of a current disability, the STRs are silent for complaints or treatment for left peripheral neuropathy. Furthermore, although the Veteran is presumed to have been exposed to herbicide agents based on his service in Vietnam, the record does not establish a nexus between his in-service herbicide exposure and current LUE peripheral neuropathy. Above all, the January 2020 VA examiner gave a negative etiological opinion and indicated that the etiology of the Veteran’s peripheral neuropathy of the left upper extremity is a result of carpal tunnel (median nerve) impingement. Carpel tunnel has not been linked to active duty. Accordingly, the Veteran’s direct service connection claims for peripheral neuropathy of the left and right upper extremities is unwarranted. See Shedden, 381 F.3d at 1167. Similarly, the Veteran cannot establish service connection on a presumptive basis. As previously indicated, presumptive service connection for peripheral neuropathy based on herbicide exposure is not available in this case because the lay and medical evidence shows that his symptoms did not manifest to a compensable degree within one year of his last exposure. See 38 C.F.R. § 3.309 (a)(6)(ii). In fact, the Veteran maintained that he developed left and right upper extremity neuropathy in 2015, over 45 years after service. See January 2020 VA Examination. It is for this reason that presumptive service connection based on a chronic disability is also unavailable to the Veteran. As the Veteran’s disability did not manifest until 45 years following service, he cannot show chronicity within one year following service or continuity of symptomatology. See 38 C.F.R. §§ 3.303 (b), 3.307(a)(3). Therefore, the Board finds that presumptive service connection for RUE and LUE peripheral neuropathy is unwarranted. Lastly, the Board finds that service connection on a secondary basis cannot be established. Specifically, the record does not support a causal nexus between the Veteran’s RUE and LUE peripheral neuropathy and his service-connected disabilities. As indicated above, the December 2015 VA examiner adequately opined that such service-connected disability (diabetes mellitus II) did not cause or aggravate his RUE or LUE peripheral neuropathy. There are no contrary opinions of record. As such, secondary service connection for RUE and LUE peripheral neuropathy is not warranted. In assessing the claim, the Board has considered the Veteran’s lay opinions that his peripheral neuropathy pain in arms hurt all day and is a result of his exposure to herbicide agents and his service-connected diabetes mellitus II. While the Veteran is competent to report observable symptoms, the Veteran is not competent to link current disability to his exposure to herbicide agents and his service-connected diabetes mellitus II. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). This requires specialized training and testing. Furthermore, the Veteran describes subjective evidence of pain and tingling in the arms, while the examiner uses objective evidence to diagnose the Veteran. The Board agrees with the examiner’s report based on education, knowledge and review of the Veteran’s claim file. (Continued on the next page)   Accordingly, the Board finds that service connection for RUE and LUE peripheral neuropathy is not warranted. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine is not for application and the claim must be denied. See 38 U.S.C. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hughes 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.