Citation Nr: 21066139 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 15-35 079 DATE: October 28, 2021 ORDER Service connection for a left lower extremity neurologic condition is denied. Service connection for a right lower extremity neurologic condition is denied. FINDING OF FACT The weight of the evidence is against finding that the Veteran's bilateral lower extremity neurologic condition had its onset during his active-duty service or within one-year post active duty service, or is otherwise related to any of his service-connected disabilities, to include his lumbar spine disability, insomnia, or hypertension. CONCLUSIONS OF LAW 1. The criteria for service connection for a left lower extremity neurologic condition have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for a right lower extremity neurologic condition have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 1965 to May 1985. In February 2017, the Veteran provided testimony before the undersigned Veterans Law Judge (VLJ). A complete transcript is of record. This appeal was previously before the Board in September 2018, April 2020, February 2021, and most recently in July 2021. The September 2018 Board decision found that presumptive service connection for neurologic impairment was not warranted because it did not manifest within the presumptive period for Agent Orange exposure. The April 2020 Board decision remanded the issue for a VA examination that addressed whether the neurologic impairment was secondary to the Veteran's service-connected insomnia or the service-connected low back disability. The February 2021 Board decision found that an October 2019 VA examination had not provided an opinion regarding whether the neurologic conditions were secondary to hypertension, and remanded for a new VA examination. The Veteran was afforded a VA examination in March 2021. The July 2021 Board decision found that the March 2021 VA examiner's nexus opinion was inadequate because the rationale was insufficient in that the examiner did not apply the findings of an article they cited to the specific facts of the Veteran's case or explain why the findings of the article made it less likely than not that the Veteran's peripheral neuropathy was not due to hypertension, and they also did not address the medical literature cited to by the Veteran's representative. The July 2021 Board decision remanded the issue for an addendum opinion so that the VA examiner could address all of the evidence of record. Service Connection Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. §§ 3.307, 3.309. If a Veteran was exposed to a herbicide agent during active military service, neurologic conditions is an enumerated disease that is presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. However, the neuropathy must manifest within a year of the last exposure to herbicides. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 (2007). Notwithstanding the provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303 (d) (2011). Service connection for a bilateral lower extremity neurologic condition is denied. The Veteran asserts that his bilateral neurologic condition is secondary to his service-connected hypertension. See Appellate Brief received January 11, 2021. A review of the Veteran's service treatment records (STRs) does not show any complaints of neurologic symptoms or diagnosis for any neuropathy conditions. For example, the March 1985 separation examination showed a normal clinical evaluation of the lower extremities and showed that the Veteran was neurologically normal. A review of the Veteran's post-service treatment records shows that a nerve conduction study first showed findings suggestive of mild peripheral neuropathy in the lower extremities in 2004. See Private Treatment record dated December 14, 2012. On examination, he showed symptoms in his lower extremities. However, the examiner reported that the clinical evaluation did not reveal lower extremity radiculopathy. The Veteran testified at a February 2017 Board hearing. The Veteran's representative and his daughter suggested that the Veteran's sleep apnea, to include a long-standing snoring problem, caused his neuropathy. The Veteran's daughter testified that she does not remember a time when the Veteran did not snore and recalled that he had problems with sleep impairment for many years. The Veteran's representative also suggested that his low back disability and hypertension may be related to the neurologic condition. An Agent Orange Peripheral Neuropathy Review Check List was done in July 2014. After a review of the Veteran's claims file, the examiner reported that there was no evidence of early onset peripheral neuropathy during his active-duty service or within a year of his separation from the military. The Veteran was afforded a VA examination in October 2019. The examiner noted that the Veteran was diagnosed with idiopathic peripheral neuropathy of the lower extremities. The Veteran reported that his symptoms began about 1979, when the tips of his toes started getting numb and have progressed over the years to the rest of his feet, then up his legs. The examiner acknowledged that an August 2015 MRI showed arthritis in the lower lumbar segments, but a clinical examination revealed that there were no symptoms to suggest radicular pain or radicular sensory symptoms in the lower extremities to support lumbosacral radiculopathy. An addendum opinion was provided in July 2020. The examiner was asked to provide an opinion regarding direct service connection, and whether the neuropathy was related to the service-connected low back disability and/or the service-connected sleep insomnia. Regarding whether the neuropathy is secondary to the lumbar spine disability, the examiner provided a negative nexus opinion. The examiner explained that the October 2019 VA examination showed that his radiculopathy was inactive. Regarding direct service connection, the examiner provided a negative nexus opinion, explaining that the STRs showed no complaints of a nerve condition and multiple medical records after service found normal neurologic examinations and no complaints of a nerve condition until 2004. The examiner pointed to the Veteran's 1985 separation examination, which indicated no neurologic condition, and November 2001 and February 2002 treatment records where the Veteran's private physician noted normal neurologic physical examinations. Regarding whether the neuropathy is secondary to the insomnia, the examiner again provided a negative nexus opinion, explaining that insomnia is not a medically accepted cause of neuropathy. The examiner acknowledged the evidence the Veteran submitted, to include an article about neuropathy and sleep apnea. However, the examiner pointed out that the Veteran has not been diagnosed with sleep apnea. Regarding aggravation, the examiner explained that insomnia is not related to the pathophysiology of neuropathy. The examiner also reported that 30 percent of neuropathy cases are idiopathic, which the Veteran was diagnosed as having, meaning that the cause was unknown. The examiner listed about 28 other known causes for neuropathy, none of which included insomnia. Here, the Board finds that presumptive service connection is not warranted for the Veteran's neurologic condition. The Board acknowledges the Veteran's report at the October 2019 VA examination that the onset of his neuropathy symptoms was in 1979, and recognizes that he is competent to report symptoms he experienced. However, the credibility of the assertion must be weighed against the other evidence of record, including evidence generated during the Veteran's military service. Here, the contemporaneous evidence of record does not support his assertion. As discussed, his STRs do no reveal any complaints of the symptoms he described at the October 2019 VA examination. Further, when asked at the Board hearing when his symptoms began, he reported that it was before the nerve conduction study in 2004, but did not report that such symptoms began in-service, or within a year of his separation from the military. As such, the Board finds that the weight of the evidence does not support a finding that presumptive service connection is warranted, based on the Veteran's presumed exposure to herbicide agents. VA received the Veteran's Appellate Brief on January 11, 2021. The representative pointed out that the Veteran was diagnosed with lumbar spine arthritis, which was confirmed by the October 2019 VA examiner. The representative also pointed out that the VA treatment records show that the Veteran has an active diagnosis of radiculopathy. However, as explained by the October 2019 VA examiner, a clinical evaluation of the Veteran did not reveal radiculopathy of the lower extremities; rather he was diagnosed with idiopathic peripheral neuropathy of both lower extremities. The Board notes that the VA examiner is a board-certified neurologist. The representative asserts that service connection is warranted because the Veteran is being treated for radiculopathy and the Veteran has been found to have arthritis of the lumbar spine. However, the October 2019 VA examiner acknowledged that the Veteran had arthritis in the lumbar spine, but specifically reported that the Veteran did not have radiculopathy, and any neurologic condition was less likely than not related to his lumbar spine. As such, the Board affords the Veteran's representative's opinion that service connection is warranted on a secondary basis, little probative weight because he is not competent to provide such an opinion; whereas the VA examiner's opinion is afforded great probative weight because the examiner has the medical training and expertise to provide such a medical opinion. Moreover, the examiner provided a sufficient rationale to support his conclusion. The Veteran's representative also raised the issue of whether he is entitled to service connection on a secondary basis, as due to his service-connected hypertension and cited to a medical journal article entitled, Hypertension-induced peripheral neuropathy and the combined effects of hypertension and diabetes on nerve structure and function in rats. Given the medical journal article, the Board remanded the claim in February 2021 so that a medical opinion could be obtained to address the relationship if any between the Veteran's hypertension and his peripheral neuropathy. The Veteran was afforded a VA examination in March 2021. After an in-person examination and a review of the Veteran's claims file, the examiner provided a negative nexus opinion. The examiner cited to a different article: Further Investigation of the Negative Association between Hypertension and Peripheral Neuropathy in the Elderly: An Oklahoma Physicians Resource/Research Network (OKPRN) study. The examiner explained that the article addressed why a person with hypertension was less likely to have peripheral neuropathy, and therefore why the Veteran's hypertension was less likely than not to have caused his peripheral neuropathy. The Board notes that the examiner did not address the article provided by the Veteran's representative and did not reconcile the contrasting articles. The July 2021 Board decision found that the medical opinion of the March 2021 VA examiner was inadequate because the rationale was insufficient, in that the examiner had not applied the findings of the article to the specific facts of the Veteran's case or explained why the findings of the article made it less likely than not that the Veteran's peripheral neuropathy was not due to hypertension and he also did not address the medical literature cited to by the Veteran's representative. The Board remanded the issues so that an addendum opinion could be provided that addressed the medical literature cited to by the Veteran's representative. The March 2021 examiner reviewed the claim again in August 2021, confirming his earlier conclusion and providing additional rationale for his conclusion. The examiner explained that the article he cited to addressed that a person who has hypertension is less likely to have peripheral neuropathy, which made it less likely than not that the two conditions were related. The examiner also reported that the Veteran fit the type of claimant contained in the study, which further bolstered the conclusion that the Veteran's conditions were less likely than not to be related to one another. Regarding the Veteran's article, the examiner explained that the study was of rats, so that study does not directly apply to the Veteran's case. The examiner explained that rats and humans are completely different physiologically and that the article cited to by the examiner was more germane to the Veteran's case, than the one submitted by the Veteran's representative. Here, the Veteran was provided an addendum opinion by the August 2021 VA examiner, which discussed the article cited to by the examiner, as well as the article submitted by the Veteran's representative. In providing his opinion, the examiner provided a sufficient rationale and addressed the concerns of the July 2021 Board remand. As such, the Board finds that there has been substantial compliance with the July 2021 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). To the extent that the Veteran believes that his bilateral lower extremity neuropathy is due to the service-connected hypertension, such a medical opinion requires medical expertise, and that determination cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide such a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the Veteran's assertions and the submitted article, a VA addendum opinion was ordered, which took into account all of the evidence of record, to include the submitted medical literature. Unfortunately, the August 2021 VA examiner provided a negative nexus opinion. The Board notes that the Veteran has not offered any competent medical opinions that would undermine any of the VA medical opinions of record. The Board acknowledges the positive evidence, to include the Veteran's diagnosis for bilateral lower extremity neuropathy and the medical literature cited to by their representative. However, the medical opinions have consistently explained why it is less likely than not that the Veteran's neuropathy is related to his active-duty service, his service-connected insomnia, his service-connected lumbar spine disability, or his service-connected hypertension. Here, the October 2019, July 2020, and August 2021 VA opinions, in regard to the narrowly tailored issues discussed in the previous paragraph, are afforded great probative weight because they were able to review the Veteran's claims file and provided robust and well-reasoned rationales to support their opinions. The Board recognizes that this issue was remanded numerous times due to inadequate medical opinions. However, this Board decision has not relied on any parts of the medical opinions that were found to be inadequate by previous Board decisions. While the Board has considered the Veteran's lay statements, assertions, and medical literature regarding the onset and etiology of his bilateral lower extremity neuropathy, that evidence is afforded less probative weight than the medical opinions. The Veteran is competent to the extent that he can provide information regarding what he experienced through his senses and can provide citations to medical literature, but he is not competent (meaning medically qualified through training or expertise) to provide a medical opinion, such as determining either whether he had neuropathy or the etiology of his neuropathy. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board acknowledges that the Veteran has provided statements regarding his in-service symptoms. However, as previously discussed, such statements were not supported by the contemporaneous evidence of record, and the medical opinions considered his assertions but explained why it was not thought that peripheral neuropathy had begun during service. Further, the medical literature his representative cited to was undermined by the August 2021 VA examiner, who explained why findings in rats were not as probative to this Veteran's case. The Board has seriously considered the Veteran's statements; and it was in recognition them and the submission of medical literature that the Board remanded the claim in July 2021 to obtain an addendum medical opinion. However, ultimately the medical evidence was most probative in this case, and it weighed squarely against service connection. Accordingly, service connection for bilateral lower extremity neuropathy is denied on a direct, presumptive and secondary basis. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.