Citation Nr: 21004267 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-47 553 DATE: January 26, 2021 ORDER Service connection for right lower extremity peripheral neuropathy is denied. Service connection for left lower extremity peripheral neuropathy is denied. Service connection for right lower extremity radiculopathy is denied. Service connection for left lower extremity radiculopathy is denied. REMANDED Service connection for low back disability is remanded. Service connection for right hand disability is remanded. Service connection for left hand disability is remanded. Service connection for right knee disability is remanded. Service connection for left knee disability is remanded. FINDINGS OF FACT 1. Right lower extremity peripheral neuropathy is not currently manifest and did not manifest at any point during the appeal period. 2. Left lower extremity peripheral neuropathy is not currently manifest and did not manifest at any point during the appeal period. 3. Right lower extremity radiculopathy is not currently manifest and did not manifest at any point during the appeal period. 4. Left lower extremity radiculopathy is not currently manifest and did not manifest at any point during the appeal period. CONCLUSIONS OF LAW 1. Right lower extremity peripheral neuropathy was not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2019). 2. Left lower extremity peripheral neuropathy was not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2019). 3. Right lower extremity radiculopathy was not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2019). 4. Left lower extremity radiculopathy was not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to April 1968, to include a year of service in Vietnam as a light weapons infantryman. He appeals an April 2015 rating decision. In October 2019, he testified at a hearing before the undersigned Veterans Law Judge (VLJ). The VLJ clarified the issues on appeal; clarified the concept of service connection claims; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran’s claims and inquired as to the existence of potential outstanding records. Thus, the actions of the VLJ comply with 38 C.F.R. § 3.103. The Board remanded the Veteran’s claims on appeal in February 2020. The Veteran’s claims folder has been returned to the Board for further appellate consideration. In February 2020, the Board also remanded a claim of service connection for hypertension. In a subsequent rating decision dated August 2020, this claim was granted. In view of the foregoing, this issue has been resolved and is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997). Service connection for right and left lower extremity peripheral neuropathy and radiculopathy Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). For certain chronic disorders, including organic disease of the nervous system, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). With chronic disease 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. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. 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, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran contends that he has right and left lower extremity peripheral neuropathy and radiculopathy that is related to service, to include as from a fall during service in Saigon as well as lifting heavy objects from performing his duties as a light weapons infantryman. The evidence of record establishes that the Veteran does not currently have right and left lower extremity peripheral neuropathy and radiculopathy. Pertinently, the Veteran was provided VA examinations for his claimed right and left lower extremity peripheral neuropathy and radiculopathy in March 2020. After examination of the Veteran, the VA examiner declined to report right or left lower extremity peripheral neuropathy or radiculopathy. In this regard, the VA examinations documented normal neurological findings of the lower extremities. There are no findings contrary to the VA examination reports during the appeal period. In this case, the Board finds that the most probative evidence weighs against a finding that the criteria have been met for current right and left lower extremity peripheral neuropathy and radiculopathy. In this regard, the Board finds it highly probative that the March 2020 VA examination reports indicated normal findings of the lower extremities and that the examinations were thorough. The Board has considered the Veteran’s statements that he has right and left lower extremity peripheral neuropathy and radiculopathy. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); Kahana v. Shinseki, 24 Vet. App. 428, 433, n.4 (2011). However, competence must be distinguished from probative weight. Although the Veteran is competent to relate what he experiences through the senses, the lay evidence is lacking in detail to support the conclusion that there is right and left lower extremity peripheral neuropathy and radiculopathy; a disability. The Veteran’s lay assertions are therefore afforded less probative weight, and less credibility than the VA examination reports. In this instance, the Board concludes that the most probative evidence establishes that the Veteran does not have right and left lower extremity peripheral neuropathy and radiculopathy. The existence of a current disability is the cornerstone of a claim for VA disability benefits. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Therefore, in the absence of current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, there is no disability that resulted from a disease or injury. We emphasize that under the provisions of 1110 and 1131, there must be disability and such disability must be due to disease or injury. Under the circumstances, the Veteran has not met the regulatory requirements to establish service connection for right and left lower extremity peripheral neuropathy and radiculopathy under any theory of entitlement and service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Here, however, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Service connection for low back, right knee, left knee, right hand, and left hand disabilities In February 2020, the Board remanded the Veteran’s claims of service connection for low back, right knee, left knee, right hand, and left hand disabilities for the Veteran to be provided VA examinations to determine the etiology of his low back, right knee, left knee, right hand, and left hand disabilities. The VA examiner was specifically instructed to render an opinion as to whether these disabilities are related to the Veteran’s in-service herbicide exposure from his service in Vietnam as well as from in-service injuries when he sustained a fall as well as from performing his duties as a light weapons infantryman which involved lifting heavy objects. Pursuant to the Board remand, the Veteran was provided a VA examination for his low back, knees, and hands in March 2020. After documenting findings of lumbosacral strain, bilateral knee strain, and bilateral hand strain, the VA examiner concluded that it is less likely than not that these disabilities are related to service to include the presumed herbicide exposure and aforementioned injuries. The only rationale provided by the VA examiner was that there was no medical literature/evidence to support an association of lumbosacral strain, bilateral hand strain, and bilateral knee strain with herbicide exposure. Indeed, there was no explanation as to why these disabilities are not related to the Veteran’s reported in-service injuries. Moreover, although the examiner also opined that it is at least as likely as not that the Veteran’s bilateral knee strain is due to the Veteran’s lumbosacral strain, the Board notes that the Veteran has been diagnosed with degenerative joint disease of the lumbosacral spine and osteoarthritis of the knees. See, e.g., VA X-ray reports dated July 2016. The examiner did not address the etiology of these disabilities and there is no other medical opinion associated with the claims folder that addresses such. Accordingly, the Board finds that addendum opinions are warranted that consider whether the Veteran has low back, right knee, left knee, right hand, and left hand disabilities that are related to service to include the Veteran’s reported injuries as well as nexus opinions as to the Veteran’s degenerative joint disease of the lumbosacral spine and osteoarthritis of the knees. The matters are REMANDED for the following action: 1. Forward the Veteran’s claims folder to the VA examiner who provided the March 2020 VA examinations for the Veteran’s back, knees, and hands for medical opinions as to the etiologies of the Veteran’s low back, right knee, left knee, right hand, and left hand disabilities. If that examiner is not available, then forward the claims folder to another appropriate medical professional. The examiner should note that the claims folder was reviewed. If the examiner determines that an opinion cannot be rendered without examination of the Veteran, then an examination should be provided. The examiner must provide opinions as to whether the Veteran has a current low back disability to include degenerative joint disease of the lumbosacral spine, left or right knee disability to include osteoarthritis, or left or right hand disability (with specific consideration of the thumbs) that is at least as likely as not related to service to include as due to the in-service injuries and activities as testified to by the Veteran (a fall during service in Saigon as well as performing duties as a light weapons infantryman which involved heavy lifting) or was present in the first post service year, and (b) if the low back disability is determined to be related to service, the examiner should address whether any of the other conditions are as likely as not due to or aggravated by the low back disability as testified to by the Veteran. The Board makes no determination as to the credibility of the Veteran at this time. A complete rationale for all opinions is requested.   2. Review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative with the requisite period of time to respond. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.