Citation Nr: 21001517 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 14-15 260A DATE: January 8, 2021 ORDER Service connection for diabetes mellitus II (diabetes) is denied. Service connection for hypertension is denied. Service connection for a neurologic condition in the right upper extremity, to include radiculopathy and neuropathy, is denied. Service connection for a neurologic condition in the left upper extremity, to include radiculopathy and neuropathy, is denied. Service connection for a neurologic condition in the right lower extremity, to include radiculopathy and neuropathy, is denied. Service connection for a neurologic condition in the left lower extremity, to include radiculopathy and neuropathy, is denied. REMANDED Entitlement to service connection for a cervical (neck) condition is remanded. FINDINGS OF FACT 1. The weight of the evidence is against finding diabetes or hypertension began in service or within a year of separation or is otherwise related to service. 2. The weight of the evidence shows the neurologic condition in the Veteran’s bilateral upper and lower extremities is peripheral neuropathy due to diabetes. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for a neurologic condition in the right upper extremity, to include radiculopathy and neuropathy, have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. § 3.303. 4. The criteria for service connection for a neurologic condition in the left upper extremity, to include radiculopathy and neuropathy, have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. § 3.303. 5. The criteria for service connection for a neurologic condition in the right lower extremity, to include radiculopathy and neuropathy, have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. § 3.303. 6. The criteria for service connection for a neurologic condition in the left lower extremity, to include radiculopathy and neuropathy, have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1955 to August 1957. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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” – also known as the “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or worsened beyond its natural progression (aggravated) by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc). Certain chronic diseases, including diabetes and hypertension, will be considered incurred in service if manifest to a degree of ten percent within one year of service. 38 C.F.R. § 3.307(a)(3). Lay statements of continuity of symptomatology may prove service connection for those chronic diseases enumerated in 38 U.S.C. § 1101(3). Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013); 38 C.F.R. §§ 3.307, 3.309. The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt is resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran is competent to describe symptoms observable to his senses, but he is not competent to determine the cause of diabetes, hypertension, or nerve conditions as this requires specialized medical training to understand the complexities of the endocrine, cardiovascular, and neurologic systems. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Service connection for diabetes 2. Service connection for hypertension Based on the evidence, the Board finds the criteria for service connection for diabetes and hypertension have not been met. 38 C.F.R. § 3.303. The evidence shows the Veteran has current disabilities. Current VA and private treatment records show diagnoses of diabetes and hypertension. Thus, the first element of service connection is satisfied. See Holton, 557 F.3d at 1366. The evidence does not show an in-service incurrence of hypertension or diabetes or that the Veteran developed these disabilities to a compensable degree within a year of service. The majority of the Veteran service treatment and personnel records are unavailable as presumed to have been destroyed by a fire at the National Personnel Records Center. See January 2005 letter, June 2018 record request and response. Therefore, the Board can derive little evidence from in-service records and must rely on other evidence. VA treatment records show diagnoses of hypertension and diabetes as far back as 2001. A May 2011 treatment record notes the Veteran had been diagnosed with diabetes for more than 15 years. Private treatment records from the 1990s focus largely on musculoskeletal issues and do not mention diabetes or hypertension. Records from hospitalization for gallbladder surgery in July 1990 include results of lab work and also do not document diagnosis of diabetes or hypertension. Similarly, while the Veteran has reported having diabetes and hypertension for many years, he has not reported being diagnosed with these conditions in service or within the year after discharge. There is simply no evidence for the Board to conclude that the Veteran’s diabetes and hypertension were developed in service or within a year after. Instead, the Veteran generally asserts that he may have been exposed to chemicals in service as he has no other explanation for why he developed hypertension and diabetes. In a September 2012 statement, he wrote that he worked at Fort Drum cutting trees in area where firearms were tested, and he did not know whether chemicals were used in that area. Diabetes is a disease that is presumed to be caused by herbicide agents if a veteran is found to have been exposed to herbicide agents; hypertension is not. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Most often, veterans with in-service exposure to herbicide agents have service in Vietnam, Thailand, or the Korean Demilitarized Zone (DMZ). See id. The Veteran’s DD Form 214 shows that he did not have service in a foreign country. Moreover, the Department of Defense (DoD) has provided VA with a list of locations outside Vietnam and the Korean DMZ where tactical herbicides and their chemical components were used, tested, or stored. Fort Drum is on that list but only for the period from May to October of 1959, after the Veteran separated from service. Accordingly, there is insufficient evidence to find the Veteran was exposed to herbicide agents to qualify for presumptive service connection for diabetes. Similarly, there is insufficient evidence to determine whether the Veteran was exposed to any other chemical in service. As noted, his service records are not available, and the Veteran has not relayed any personal knowledge of specific types of chemicals to which he was exposed for VA to conduct any further investigation. The evidence does not reach the level of equipoise to find that the Veteran was exposed to herbicide agents or any other chemical in service. Without an in-service incurrence leading to the development of these diseases, the second element is not met, and service connection cannot be established for hypertension or diabetes. See Holton, 557 F.3d at 1366. 3. Service connection for a neurologic condition in the right upper extremity 4. Service connection for a neurologic condition in the left upper extremity 5. Service connection for a neurologic condition in the right lower extremity 6. Service connection for a neurologic condition in the left lower extremity After reviewing the record, the Board finds the criteria for service connection for neurologic conditions in the bilateral upper and lower extremities have not been met. See 38 C.F.R. § 3.303 The evidence shows the Veteran has a current neurologic condition affecting his extremities. The April 2019 VA examiner diagnosed bilateral upper and lower peripheral neuropathy. Similarly, the July 2016 VA examiner diagnosed bilateral peripheral neuropathy of the lower extremities. The first element of service connection is satisfied. See Holton, 557 F.3d at 1366. The Board notes a private treatment record from September 1995 discusses carpal tunnel syndrome in the right arm. Neither current treating providers nor the VA examiners diagnosed carpal tunnel syndrome within the claim period. Therefore, right carpal tunnel syndrome does not appear to be a current disability for service connection consideration. See Romanowski v. Shinseki, 26 Vet. App. 289, 294 (2013). Next, the evidence does not show peripheral neuropathy in service or related to a reported in-service injury to the back and right arm. During the April 2019 examination, the Veteran reported having numbness and cramps in his upper and lower extremities for a long time, but he did not identify a specific date or time frame for the onset. As noted above, the Veteran’s service treatment records are not available for the Board to review. However, he has not reported being diagnosed with peripheral neuropathy or other nerve condition in service. In an undated statement, the Veteran reported an accident where he fell from the second story of the barracks and broke his right arm. He reported that he had two damaged nerves from that accident. The July 2016 examiner considered the Veteran’s report of an in-service fall but found no evidence on clinical examination or in the available records to suggest a nexus between that injury and the current nerve condition. The Board finds that opinion probative as it is based on the examiner’s diagnosis of peripheral neuropathy due to diabetes, rather than radiculopathy due to a spine condition or musculoskeletal injury. Further, the Board notes that the clinical evidence shows a nerve condition in all four extremities, not only the right arm. Although the Veteran speculates that he may have been exposed to chemicals, there is insufficient evidence to reach the level of equipoise for the Board to find that he was exposed to herbicide agents or other chemicals in service, which could be linked to his peripheral neuropathy. Accordingly, the weight of the evidence is against finding an in-service incurrence of peripheral neuropathy, the second element is not established, and service connection on a direct basis is not warranted. See Holton, 557 F.3d at 1366. Alternatively, the Veteran has asserted his nerve condition is radiculopathy that is due to his service-connected back and claimed neck disabilities or that it is aggravated by those disabilities. The Veteran is not competent to determine the cause of his nerve condition as he does not have the requisite medical training, and the Board must rely on the competent evidence of record. See Jandreau, 492 F.3d at 1377. The Board finds the weight of that competent evidence is against finding the Veteran’s nerve condition is due to or aggravated by his service-connected back or claimed neck disabilities. The July 2016 examiner opined that the peripheral neuropathy of the lower extremities was due to diabetes and less likely than not caused or aggravated by the lumbar spine condition. Similarly, the April 2019 examiner opined that the upper and lower peripheral neuropathy was less likely than not caused or aggravated by the cervical or lumbar spine disabilities. The examiner explained that medical evidence shows that diabetes is the most common etiology for the development of peripheral neuropathy and spine disabilities do not cause peripheral neuropathy. The examiner further found that there was no evidence that the Veteran’s peripheral neuropathy had been aggravated beyond the natural progression of the disease. The Board finds these medical opinions highly probative as they provide an alternate etiology supported by medical evidence and are not refuted by any other competent evidence of record. The Board notes that there are a few notations in treatment records of radicular pain. Specifically, private treatment records from March and August 1995 show notations of back pain radiating to the legs. A September 2013 treating provider noted low back and hip pain with signs and symptoms that suggest radicular pain. The April 2019 examiner specifically discussed the 2013 notation and explained that any suggestions of radiculopathy were not confirmed in subsequent workups and that the Veteran has not received a formal diagnosis of radiculopathy, because the clinical findings show peripheral neuropathy, not radiculopathy. The Board finds this opinion, which is supported by thorough review of the record and clinical evaluation, highly probative. Additionally, the examiners on the July 2016 peripheral nerve, neck, and back examinations; April 2019 neck and peripheral nerve examinations, and March 2020 low back examination found no evidence of signs or symptoms of radiculopathy. These examinations were conducted by three different medical professionals, which lends further credibility to the diagnosis of neuropathy rather than radiculopathy. The Board finds the competent, medical evidence of record shows the Veteran has neuropathy in his extremities that is not due to or aggravated by his spine disabilities. Therefore, service connection on a secondary basis is also not warranted for neuropathy. See 38 C.F.R. § 3.310. REASONS FOR REMAND 1. Entitlement to service connection for a neck condition is remanded. The Board finds an additional medical opinion is needed for the Veteran’s neck claim. The VA examiners in July 2016 and April 2019 diagnosed cervical spondylosis. The April 2019 VA examiner provided a negative opinion on service connection noting that the diagnosis came in 2016, many years after service. The Board finds the opinion inadequate to adjudicate the Veteran’s claim. First, the Board notes that a VA treatment record from October 2011 listed cervical stenosis as an active problem, and the examiner does not appear to have considered this relevant evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, in a September 2010 letter, Dr. NAO wrote that the Veteran’s back and left knee problems are susceptible to inflammatory changes and subsequent degenerative problems, which cause bad posture with loss of correct alignment and curvature of the cervical, thoracic, and lumbar lordosis putting more stress on the vertebra. This evidence suggests a potential relationship between the Veteran’s service-connected low back and left knee disabilities and his neck condition. As such, a new medical opinion is also needed to address whether the Veteran’s neck disability was at least as likely as not caused or aggravated by his back or knee. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Obtain a new examination and medical opinion for the Veteran’s neck claim. The examiner should review the record and address the following: (a.) Is the Veteran’s current neck disability at least as likely as not due to service, including a reported fall from the second story of a barrack? (b.) Was the Veteran’s current neck disability at least as likely as not caused by his service-connected low back disability? (c.) Was the Veteran’s current neck disability at least as likely as not aggravated (worsened) by his service-connected low back disability? (d.) Was the Veteran’s current neck disability at least as likely as not caused by his service-connected left knee disability? (e.) Was the Veteran’s current neck disability at least as likely as not aggravated (worsened) by his service-connected left knee disability? If aggravation is found provide a baseline level of disability prior to aggravation. Consider all relevant lay and medical evidence, including the October 2011 notation of cervical stenosis and the September 2010 letter from Dr. NAO discussing the interrelationships between the knee, low back, and the rest of the spine. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the examiner should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.P. Armstrong 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.