Citation Nr: 21001216 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-44 225 DATE: January 7, 2021 ORDER Entitlement to service connection for neuropathy of the right upper extremity is denied. Entitlement to service connection for neuropathy of the left upper extremity is denied. Entitlement to service connection for neuropathy of the right lower extremity is denied. Entitlement to service connection for neuropathy of the left lower extremity is denied. Entitlement to service connection for obstructive sleep apnea (OSA) is denied. REMANDED Entitlement to service connection for a headache disorder is remanded. FINDINGS OF FACT 1. The Veteran’s right upper extremity peripheral neuropathy did not manifest to a compensable degree within the applicable presumptive period, and the disorder is not otherwise etiologically related to an inservice injury or disease. 2. The Veteran’s left upper extremity peripheral neuropathy did not manifest to a compensable degree within the applicable presumptive period, and the disorder is not otherwise etiologically related to an inservice injury or disease. 3. The Veteran’s right lower extremity peripheral neuropathy did not manifest to a compensable degree within the applicable presumptive period, and the disorder is not otherwise etiologically related to an inservice injury or disease. 4. The Veteran’s left lower extremity peripheral neuropathy did not manifest to a compensable degree within the applicable presumptive period, and the disorder is not otherwise etiologically related to an inservice injury or disease. 5. A preponderance of the evidence of record is against finding that the Veteran has had an obstructive sleep apnea disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection of right upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection of left upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection of right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection of left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 1967 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of February 2016 and May 2018 rating decisions issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified at a March 2019 videoconference hearing before the undersigned Veterans Law Judge, a transcript of which is attached to the record. The Board previously remanded this matter to the AOJ in November 2019 for further development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). When a chronic disease, such as peripheral neuropathy, is shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Board notes that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 38 U.S.C. § 1101. A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). 1. Entitlement to service connection for peripheral neuropathy of the right upper extremity 2. Entitlement to service connection for peripheral neuropathy of the left upper extremity 3. Entitlement to service connection for peripheral neuropathy of the right lower extremity 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity The Veteran asserts his neuropathy of the bilateral upper and lower extremities is due to his military service. According to his military personnel records, the Veteran served in the Republic of Vietnam during the Vietnam Era. Thus, he is presumed to have been exposed to herbicide agents. 38 U.S.C. §1116(f); 38 C.F.R. §3.307(a)(6). Service connection may be presumed for certain enumerated diseases based on such exposure. See 38 U.S.C. §1116; 38 C.F.R. §§3.307, 3.309. Specifically, service connection for early-onset peripheral neuropathy shall be presumed if this disease manifests to a compensable degree (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). Alternately, service connection will be presumed if noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The question before the Board is whether the Veteran has a chronic disease that was noted as chronic inservice or that manifested to a compensable degree inservice or within a year of his separation with continuity of symptomatology since then. At the November 2019 Board hearing, the Veteran denied experiencing neuropathy inservice but testified to recurrent numbness in his legs since his service in Vietnam. The Veteran’s service treatment records are silent for complaints of or treatment for peripheral neuropathy. November 1969 service treatment records note the Veteran was in satisfactory physical condition for either separation or reenlistment. The Veteran specifically denied having or ever having neuritis at separation. March 1973 and 1974 Army reserve examinations are silent for signs of neuropathy. His VA treatment records indicate that he was diagnosed with polyneuropathy by a private physician, but do not indicate a date. On remand, the Board instructed the AOJ to attempt to retrieve these private records. In April 2020 correspondence the AOJ asked the Veteran to identify the location of these records but received no response. Therefore, the Board will proceed to adjudicate the claim based on the evidence of record. The Veteran was afforded a VA examination in February 2016. He reported episodic radiating pain, numbness and tingling that originated in his left neck and spread to his left arm and fingers. He also described right hand and finger numbness, tingling and pain, as well as pain and stiffness in his neck. Finally, he reported pain, numbness and tingling radiating from his low back into his left leg, as well as a history of chronic neck and low back pain and stiffness that worsened with activity. The Veteran indicated these symptoms began approximately one year prior to the examination. The examiner observed mild intermittent pain, numbness and paresthesias and/or dysesthesias in the bilateral upper and left lower extremities. The examiner recorded mild incomplete paralysis of the upper radicular group as well as mild incomplete paralysis of the left sciatic nerve and bilateral tibial nerve. All other nerves were described as normal. The examiner opined that the Veteran’s peripheral neuropathy was less likely than not due to his military service, reasoning his symptoms were consistent with radiculopathy of the upper and lower extremities. She observed the Veteran reported chronic cervical and lumbar spine pain and stiffness, and that radiculopathy was a common finding in such individuals. She also noted that his symptoms began approximately one year prior the examination, many years after his separation from service and long after the presumptive period of peripheral neuropathy based on herbicide exposure. In February 2016, the Veteran reported a fall on his lower back to a VA clinician. March 2016 VA treatment records indicate he reported left arm and leg tingling as well as daily back pain since November of 2015, though he denied any falls or injuries. He indicated that some days he felt “like the pain in the back is connected to the left arm and leg tingling.” He was scheduled for x-rays, which occurred in late March 2016. This imaging revealed multilevel degenerative changes of the facet joints of the lower lumbar spine as well as multilevel degenerative changes of the facet joints of the cervical spine. The VA clinician noted the Veteran manifested degenerative arthritis of both the lumbar and cervical spine at multiple intervertebral levels. The Veteran reported taking over the counter medications to treat his pain, and the cilician offered a prescription of gabapentin for the neuropathic pain radiating into his extremities from his lower back and neck. May 2016 private treatment records indicate the Veteran complained of left-sided weakness for the last several months to a year. He reported numbness and tingling in his left shoulder, arm and hand along with intermittent weakness in his left leg. He also described neck pain descending into his arm. He denied right-sided complaints. The private physician conducted EMG testing revealing mild (sensory) peripheral neuropathy involving the left lower extremity, mild left carpal tunnel syndrome, probable mild active left C4/C5 radiculopathy and a mild abnormal irritability in the left L5/S1 paraspinal muscle. The physician surmised the irritability could be due to arthritis or a disc disorder but stated that the EMG testing did not reveal any electrodiagnostic evidence of an active lumbosacral radiculopathy. He speculated that the Veteran’s left leg neuropathy could be due to metabolic issues (diabetes, renal, thyroid), peripheral vascular disease, anemia or Vitamin B deficiency among other causes. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Indeed, in Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. In this case, the Board finds conflicting lay testimony regarding the onset of the Veteran’s neuropathic symptoms. At service separation, the Veteran denied any symptoms of neuropathy, and his March 1973 and 1974 Army reserve examinations revealed no neuropathic symptoms or abnormalities. However, at the March 2019 Board hearing, he endorsed experiencing lower extremity radiculopathy symptoms since his separation from active service. This testimony is inconsistent with his report of a 2014 or 2015 onset of neuropathic symptoms made to both VA and private clinicians. The Board finds the Veteran’s most probative statements are those made at the time of his separation from service and reserve examinations, rather than a recollection made almost 50 years later. See State v. Spadafore, 220 S.E.2d 655, 661 (W. Va. 1975) (observing that, when evaluating inconsistent or contradictory testimony, “[t]he fact that [a witness] has stated the matters differently on a previous occasion tends to demonstrate either a failure of memory, or a lack of integrity, and in either event it weakens and impairs the value of his testimony.”). The Board also places more probative value on the statements made to both VA and private clinicians, as they were made for the purposes of treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (it is presumed that a person will be as honest with their treatment providers as possible in an effort to obtain relief from their symptoms). There is no objective medical evidence of onset of peripheral neuropathy until many years after separation from service, and the Board awards the Veteran’s hearing testimony regarding onset shortly after separation little probative value. As such, the Board finds that service connection for peripheral neuropathy based upon continuity of symptomatology under 38 C.F.R. § 3.303(b) or as being manifest to a compensable degree within one year of service discharge under 38 C.F.R. § 3.309(a) is not warranted. Although VA treatment records indicate the Veteran was diagnosed with peripheral neuropathy by a private physician, possibly prior to 2014, the Veteran did not identify these records. The duty to assist in the development of the Veteran’s claim is not a “one-way street,” see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), and the Veteran has the ultimate burden to provide private medical records. To the extent the Veteran asserts that his peripheral neuropathy is otherwise due to his service, the Board observes that he is not competent to provide a diagnosis in this case or determine that any particular symptoms were manifestations of a chronic disability related to service. The issue is medically complex, as it requires medical training and knowledge of orthopedic pathology. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). Conversely, the Board finds the opinion of the February 2016 VA examiner highly probative as its rationale incorporates the objective medical evidence of record as well as the lay testimony and a personal examination of the Veteran. There is no competent medical opinion to the contrary. The May 2016 private physician did not provide an opinion with regard to etiology, but his list of possible etiologies for the Veteran’s peripheral neuropathy did not include the circumstances of his military service. As a preponderance of the evidence is against a finding that the Veteran’s peripheral neuropathy is due to his military service, the benefit of the doubt rule is not for application and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to service connection for OSA The Veteran asserts that his OSA is due to his active service. At the March 2019 Board hearing, the Veteran testified to getting very little sleep during his time in Vietnam due to the circumstances of his deployment. He did not indicate when his sleep apnea symptoms began, and he was asked by his representative, “do you have a CPAP machine for sleep, do you have a machine that helps you breathe at night or no?” The Veteran replied, “I’ve got one from VA…” although the end of the sentence is described as inaudible by the hearing transcriber. The Board observes that the Veteran’s VA treatment records contain no documentation of his prescription for or use of a CPAP machine. The Veteran’s service treatment records are silent for complaints of or treatment for sleeping issues, as are his March 1973 and 1974 Army reserve examinations. The evidence of record indicates that the Veteran first reported snoring and other somatic symptoms during private October 2013 treatment for an acquired psychiatric disorder. February 2016 VA treatment records indicate the Veteran reported loud snoring, fatigue and non-refreshing sleep. He described trying to go to bed around 10:30 PM and tossing and turning for one to two hours having thoughts of his time deployed in the Vietnam War. He also reported nightmares at least three to four times per week. The VA clinician found him at moderate risk for OSA and referred him for a sleep study. The Veteran underwent a VA sleep study in March 2016. The testing indicates an apnea/hypopnea index of 1.5 per hour with zero obstructive apneas, one central apnea, zero mixed and four hypopnea events during the total scoring period. The lower oxygen desaturation was 88 percent from a baseline of 96 percent and the CG was unremarkable. The observing clinician’s impression was that there was no evidence of OSA or periodic limb movement disorder. The Veteran’s representative submitted April 2019 correspondence containing several studies linking the manifestation of OSA in subjects with combat-related posttraumatic stress disorder (PTSD). The Veteran has a service-connected PTSD disability. The Board observes that the Veteran has not been afforded a VA examination for OSA. A VA medical examination is required when there is competent evidence of a current disability, evidence of an in-service event, injury or disease, indication that a current disability may be service related (to include secondary service connection), and there is otherwise insufficient medical evidence to make a decision. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id. at 83. The Board finds that a VA examination under the standards of McLendon is not warranted in this case. In this regard, the Veteran denied symptoms of a sleep disorder during service at his separation and post-separation reserve medical examinations, which recorded no symptoms of a sleep disorder. At the March 2019 Board hearing, the Veteran did not suggest symptoms of a sleep disorder began during service. Notably, OSA is a known clinical diagnosis, and a March 2016 sleep study found no evidence of this disorder. While the Veteran claims he has a current sleep apnea condition and is competent to report symptoms such as snoring or daytime tiredness, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. Conversely, the Board places great probative value on the VA sleep study, as it was conducted and interpreted by professional clinicians with specialized training. The Veteran has presented no probative evidence that contradicts the medical records or negative sleep study result. While his representative has submitted studies linking OSA to combat-related PTSD, the Board awards these no probative value, as the VA sleep study indicated the Veteran does not have an OSA diagnosis. The Board also notes that both February 2016 and May 2018 VA examinations attributed the Veteran’s chronic sleep impairment, to include nightmares and an inability to fall asleep, to his service-connected acquired psychiatric disorder. The record does not include diagnosis of a sleep disorder. A current disability is essential to a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997). Given the lack of evidence of inservice symptoms of a sleep disorder as well as the negative results of the sleep study, the Board finds a preponderance of the evidence is against the claim. Therefore, the benefit of the doubt rule is not for application and entitlement to service connection for OSA must be denied. See Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Entitlement to service connection for a headache disorder is remanded. The Veteran asserts his headache disorder is due to his active service. At the March 2019 Board hearing, the Veteran and his representative implied that his headaches are due to his service-connected PTSD or tinnitus, occurring when these conditions “act up” and requiring him to go upstairs by himself for a time. The Board observes that the Veteran has not been afforded a VA examination for his headache disorder. As noted above, a VA examination is required when there is competent evidence of a current disability, evidence of an in-service event, injury or disease, indication that a current disability may be service related (to include secondary service connection), and there is otherwise insufficient medical evidence to make a decision. McLendon, 20 Vet. App. at 81-83. Although the Veteran’s service and post-service treatment records are silent for complaints of headaches, he is competent to report the onset of headaches, to include their occurrence in conjunction with symptoms of his service-connected disabilities. However, he is not competent to determine whether these headaches are manifestations of a chronic disability or to opine as to a nexus between them and his service-connected disabilities. See Kahana v. Shinseki, 24. Vet. App. 428 (2011). Similarly, the Board cannot substitute its own inadequate lay knowledge for that of the Veteran. See Kahana (Lance, J. concurring). Therefore, the Board concludes the low bar of McLendon has been cleared and a medical examination is warranted to determine the nature and etiology of the Veteran’s headache disorder. The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records and associate them with the claims file. 2. Thereafter, schedule the Veteran for a VA examination to clarify the nature and etiology of his headache disorder. Based on a review of the record, an examination of the Veteran and with consideration of his March 2019 hearing statements reporting headaches, the examiner should opine: a) Whether any diagnosed headache disorder at least as likely as not (50 percent probability or greater) had its onset in or is otherwise due to his active service; and b) Whether any diagnosed headache disorder is at least as likely as not (50 percent probability or greater) caused or aggravated (a medically discernible increase in severity even if temporary) by his service-connected PTSD or tinnitus, to include medication taken for treatment of PTSD. If the opinion is to the effect that a service-connected disability (or medication for such disability) did not cause, but aggravated, a diagnosed headache disability, please identify, to the extent possible, the degree of additional disability (pathology/impairment) resulting from such aggravation, indicating the “baseline” severity of such disability prior to any aggravation by a service-connected disability and the level of severity existing after the aggravation occurred. The examiner must provide supporting rationale for any opinion offered. 3. Thereafter, readjudicate the claims on appeal. If any of the claims on appeal remain denied, issue a supplemental statement of the case and return the appeal to the Board if otherwise in order. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.