Citation Nr: 21063912 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 19-18 265 DATE: October 18, 2021 ORDER Entitlement to service connection for left hand peripheral neuropathy is denied. REMANDED Entitlement to service connection for a heart disability is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of left hand peripheral neuropathy. CONCLUSION OF LAW The criteria for entitlement to service connection for left hand peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to November 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2018 and June 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). During the course of this appeal, an August 2021 rating decision established service connection for tinnitus and assigned a 10 percent rating, effective July 21, 2021. Therefore, the claim of entitlement to service connection for tinnitus, previously the subject of the appeal, has been resolved in the Veteran's favor, and there is no longer a case in controversy for appellate consideration as to that claim. 1. Entitlement to service connection for left hand peripheral neuropathy. Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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. Secondary service connection may be established for a disability that is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran contends that left hand peripheral neuropathy began during service and continues to the present. The Veteran asserts that left hand peripheral neuropathy is due to herbicide agent exposure while in service. The Board notes that herbicide agent exposure has been conceded based on the Veteran's duty or visitation in the Republic of Vietnam. The law and regulations stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Early-onset peripheral neuropathy is a disease presumed associated with herbicide agent exposure. 38 C.F.R. § 3.309(e); 38 U.S.C. § 1116(f). However, the provisions of 38 C.F.R. § 3.307(a)(6) must be met and the rebuttable presumption provisions 38 C.F.R. § 3.307(d) must be satisfied. Peripheral neuropathy does not need to be transient, but it must manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicide agents to qualify for the presumption of service connection. However, even if peripheral neuropathy does not meet the definition of "early-onset" peripheral neuropathy, a Veteran can still establish service connection for peripheral neuropathy by showing it is directly related to service without the benefit of the presumptive provisions of 38 C.F.R. § 3.309(e). Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the Board finds that the evidence of record does not show that the Veteran has been diagnosed with left hand peripheral neuropathy. Therefore, as the preponderance of evidence is against a finding that the Veteran has a current peripheral neuropathy diagnosis or has had any peripheral neuropathy contemporary to the claims period, the claim for service connection must be denied. The threshold consideration for any service connection claim is the existence of a current disability. In the absence of proof of a present disability, there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, the evidence of record shows no evidence of a current left upper extremity peripheral neuropathy diagnosis. The service medical records were reviewed and show no treatment for or diagnosis of any peripheral neuropathy while in-service. An analysis of post-service medical records does not show any peripheral neuropathy diagnosis in the evidence of record. The Veteran has not submitted any competent evidence that demonstrates a diagnosis of peripheral neuropathy during the claim period. In fact, the only mention of peripheral neuropathy in the medical record is a December 2020 note where the Veteran explicitly denied a history of peripheral neuropathy. The Board notes that, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Bruce v. West, 11 Vet. App. 405 (1998) (one not a medical expert is nevertheless competent to offer evidence of his symptoms in support of a claim for an increased rating); Layno v. Brown, 6 Vet. App. 465 (1994). The Board acknowledges that the Veteran has claimed that he has been diagnosed with left hand peripheral neuropathy. However, the Board finds that the Veteran, as a lay person, is not competent to provide a diagnosis for a complex disability dealing with neurological issues, and thus is not competent to diagnose a neurological disease. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has not submitted competent evidence that supports a finding of a current peripheral neuropathy diagnosis. The Board notes that a VA medical opinion has not been obtained in connection with the claim. 38 U.S.C. § 5103A(a). A VA medical examination is not required as a matter of course in virtually every case. Where only a conclusory generalized statement is provided by the Veteran, an examination may not be required. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). VA only needs to make reasonable efforts to assist a claimant in obtaining a medical opinion when an opinion is necessary to substantiate the claim for a benefit. Delarosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Here, the claims file contains the Veteran's general lay assertions that link left hand peripheral neuropathy to herbicide agent exposure in service. There is no evidence of record that suggests a current left upper extremity peripheral neuropathy diagnosis, or any left upper extremity neurologic disability, or any possible connection between the two. Thus, the Board does not find it necessary to obtain a medical opinion, as there is no reasonable possibility that it would substantiate the Veteran's claim. 38 C.F.R. § § 3.159(c)(4). VA is not obligated to grant a claim for benefits simply because there is no evidence disproving it. A claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107; Skoczen v. Shinseki, 564 F.3d 1319 (2009); Fagan v. Shinseki, 573 F.3d 1282 (2009). Although VA has a duty to assist the Veteran in substantiating a claim, that duty is not a one-way street, and it is important that the Veteran make efforts to assist VA in gathering evidence relevant to the claim. Woods v. Gober, 14 Vet. App. 214 (2000); Hurd v. West, 13 Vet. App. 449 (2000). The Board finds that the Veteran's bare assertion, without more, that he has an alleged disability due to service does not require more of VA's duty to assist. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all Veterans in disability cases involving nexus issues simply because there are lay statements that the condition is linked to service). There is no evidence of the claimed disability or any indication of an association to service. There is sufficient competent evidence of record for the Board to make a decision on the claim. Therefore, VA's duty to provide an examination with an opinion is not triggered. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). After a careful review of the evidence of record, the Board finds the preponderance of the evidence is against the claim of entitlement to service connection for left hand peripheral neuropathy. None of the Veteran's medical treatment providers have given any indication that the Veteran has been diagnosed with a left upper extremity peripheral neuropathy and the Veteran has not submitted any competent medical evidence which supports the claim of a current left upper extremity peripheral neuropathy diagnosis or shows a relationship between any current left upper extremity peripheral neuropathy disability and service. In the absence of competent medical evidence finding a current left hand peripheral neuropathy diagnosis, or showing any left upper extremity neurologic disability, the threshold requirement for substantiating the claims for service connection is not met. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board is appreciative of the Veteran's faithful and honorable service to our country. The Board acknowledges that VA is statutorily required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, the Board finds that the preponderance of the evidence is against a finding of any current diagnosis for left hand peripheral neuropathy related to active service. Therefore, the claim of service connection for left hand peripheral neuropathy must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a heart disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection a heart disability. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). The Veteran asserts that service connection for a heart disability is warranted as a result of gravitation forces (G Force) exerted on his body while flying in service. In the alternative, the Veteran asserts that a current heart disability is due to herbicide agent exposure while in-service. The Board notes the Veteran's Military Occupational Specialty in service was Airborne Radar Intercept Officer and service personnel records confirm that the Veteran flew numerous times while on active duty service. The Veteran is presumed to have been exposed to herbicide agents based on the Veteran's duty or visitation in the Republic of Vietnam. However, as the record currently stands, the Veteran has not been diagnosed with a heart disability for which presumptive service connection based on exposure to herbicide agents is warranted. 38 C.F.R. § 3.309(e). That finding does not preclude the Veteran from pursuing a claim for service connection to be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The service medical records do not show complaints, treatment, or a diagnosis of any heart condition in service. The service separation examination does not show any complaints of a heart condition at separation from service. In support of the claim, the Veteran has provided a private August 2017 opinion from a cardiologist. In that statement, the examiner stated that the Veteran had a history of mitral valve regurgitation, status post mechanical mitral valve replacement. In 2015, the Veteran developed congestive heart failure due to thrombosis secondary to being placed on Pradaxa. After treatment, that condition has since returned to normal. The examiner stated that there had been conflicting evidence of the past 50 years regarding whether or not chronic exposure to excessive G forces predisposes a high performance pilot to valve disease. A fairly recent study suggested that there was a definite correlation between valve disease progression in aviators. The examiner concluded by saying that, in his professional opinion, it is at least as likely as not (50 percent or greater probability) that the Veteran's severe valvular regurgitation was related to his history as a high-performance fight pilot in service. The Board finds that private August 2017 opinion to be of limited probative value because the examiner did not review the claims file. The Board notes that the Veteran acknowledged that the August 2017 examiner did not have access to the entire claims file during the July 2021 Board hearing. At a May 2018 VA examination, after review of the entire claims file, the examiner, a vascular surgeon, opined that the claimed heart condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed injury, event, or illness in service. The VA examiner explained that the service medical records did not show any valvular heart disease (VHD) signs, symptoms, treatments, or pathologic diagnoses. The voluminous private treatment records documented that the Veteran was cardiac healthy with no known VHD until February 2005, when the Veteran presented in congestive heart failure due to an acute rupture of the mitral valve (MV) posterior leaflet (PL) chordae tendinae (CT). The acute CT rupture produced profound mitral valve regurgitation that required urgent mitral valve replacement (MVR). The examiner stated that it is critical to note that the operative surgeon from February 2005 documented a congenital abnormality ("unusually" large and redundant) of the PL of the MV. Fortunately, the MVR was a success, and according to the August 2017 private examiner, the Veteran had no current cardiac issues. The examiner stated that the August 2017 private medical opinion had several problems. First, the private examiner had no records from February 2005 and therefore knew nothing of the congenital MVPL anatomic abnormality. Second, the private examiner noted there was fifty years of conflicting evidence as to whether chronic aviation G-force (GF) can produce VHD. So clearly, there is no medical consensus that GF causes or aggravates VHD beyond the normal progression. Third, based on one cited article (in the face of fifty years of conflict) that reported a correlation between VHD progression in aviators, the August 2017 examiner opined a more likely than not standard that the Veteran's MVPLCT rupture was connected to active duty pilot service. The May 2018 VA examiner was not able to find the article cited by the private examiner to assess its scientific merits. What the May 2018 VA examiner was able to find a his review of the literature was that overwhelmingly an acute (non-infectious) CT rupture was operatively found to be due to a congenital redundant floppy MVPL. The VA examiner cited his credentials and stated that, over the course of decades of service and VA service, he had reviewed untold thousands of active duty service members' medical records and Veterans' service medical records and VA treating medical records. In all of that, he had never heard of a case of MVCT rupture judged due to combat flying induced G-forces. In the VA examiner's opinion, the Veteran's February 2005 MVPLCT rupture was due to, or the result of a congenital MVPL anatomic abnormality and was not incurred in, or caused by, excessive G-forces from flying during service. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board appreciates the efforts of the May 2018 examination and the thoroughness of the report. However, the Board finds the May 2018 examination to be incomplete as the examiner applied an incorrect standard for a pre-existing or congenital condition. When a Veteran is found to have a pre-existing condition, the examiner must opine whether there is clear and unmistakable evidence that the disability did not increase in severity beyond the natural progression of the disease during service. Here, the examiner found that the Veteran had a congenital heart abnormality and concluded that based on that abnormality the claimed condition was not due to service. However, the examiner did not address whether the pre-existing condition was clearly and unmistakable not aggravated by service, or whether there was any superimposed injury of the heart during service, to include as due to exposure to high gravitational forces. Because the May 2018 examiner did not apply the correct standard, a pre-decisional duty to assist error occurred. Thus, remand is necessary for an adequate etiology opinion regarding the current heart condition and service. The Board finds that the Veteran should be provided a VA examination to determine the nature and etiology of the claimed heart disabilities. Therefore, on remand an examination should be scheduled and an opinion as to the etiology of the Veteran's claimed heart conditions should be requested. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination, if needed, without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Request the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for the claimed disabilities. After securing the necessary releases, attempt to obtain all copies of pertinent treatment records identified by the Veteran that are not currently of record. At a minimum, obtain any outstanding VA treatment records. All attempts to obtain records must be documented in the claims folder. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of a claimed heart disability with a cardiologist or similar specialist. The examiner must review the claims file, including this Remand, and should note that review in the report. The examiner should address the lay statements of record, to include hearing testimony, regarding the claimed disability and its etiology. The examiner is advised that the Veteran is competent to report symptoms and history and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. After reviewing the claims files, the examiner should diagnose all heart disabilities found. The examiner is explicitly asked to determine if it is at least as likely as not (50 percent or greater probability) that the Veteran has ischemic heart disease. The examiner should provide the following opinions for all heart disabilities found, based on the record and examination of the Veteran: (a) Did a heart condition clearly and unmistakably (medically undebatable) preexist entrance to active service? The examiner should state what evidence supports that opinion and state what heart condition clearly and unmistakably pre-existed entrance to service. (b) If a heart condition is found to have clearly and unmistakably preexisted service, the examiner should opine whether it is clear and unmistakable that a preexisting heart condition was not aggravated (worsened beyond the natural progress of the disease) during service. The examiner should explain any effect that exposure to herbicide agents and gravitational forces had on the Veteran's heart condition. (c) For any heart condition that is found to not clearly and unmistakably have preexisted entrance to active service, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the heart condition is etiologically related to active service or any event, disease, or injury during service, including whether a heart condition (1) began during active service, (2) manifested within one year following separation from service, (3) is related to now conceded herbicide agent exposure, (4) is related to gravitational forces exerted on the Veteran while flying in-service, (5) was noted during service with continuity of the same symptomatology since service. (d) For any heart condition which is found to a be a congenital defect, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the congenital defect increased in severity beyond the actual progress of the disorder during service, or was subject to superimposed injury during service. The examiner should specifically opine whether it is at least as likely as not (50 percent or greater probability) that exposure to herbicide agents or high gravitational forces during service was a superimposed injury on a congenital defect. A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of an in-service record of the claimed disability. The expert is advised that the absence of a disability from the list of disabilities which are presumed to be the result of exposure to herbicide agents is not a sufficient explanation for a negative opinion. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.