Citation Nr: 21066480 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 09-07 704 DATE: November 1, 2021 ORDER Entitlement to service connection for a neurological condition (other than tremors) and to include a pinched nerve, sciatica, and peripheral neuropathy is denied. FINDING OF FACT A neurological condition was not manifest in service, was not manifested within one year of service, and a current neurological condition is not shown to be etiologically related to the Veteran's service. CONCLUSION OF LAW The criteria for service connection for a neurological condition (other than tremors) and to include a pinched nerve, sciatica, and peripheral neuropathy are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1955 to January 1958. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In February 2012, the Veteran testified at a Travel Board hearing before Veterans Law Judge (VLJ) Senyk; in June 2018, the Veteran testified at a videoconference Board hearing before VLJ Kennedy. Transcripts of both hearings are of record. This matter stems from two separate appellate streams that were merged: entitlement to service connection for a neurological disability, with manifestations of tremors, and entitlement to service connection for a neurological disability to include a pinched nerve, sciatica and peripheral neuropathy. Previously, the Veteran's claim for entitlement to service connection for a neurological disability, with manifestations of tremors was remanded in April 2012 and May 2018. In January 2021, the Board remanded this matter for further development. In July 2021, the AOJ granted service connection for the Veteran's tremors as secondary to his service-connected posttraumatic stress disorder. Thus, service connection for that disability is no longer before the Board for appellate review. In September 2021, the AOJ granted service connection for mixed headaches as a residual of a head injury. To the extent that the current claimed neurological condition potentially encompasses headaches, that matter has been resolved by the AOJ and is not before the Board. As there have been hearings by two separate VLJs on the issue on appeal, a panel decision is necessary for final adjudication of the claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Veteran was notified of his right to testify at a third hearing at the pre-hearing conference prior to the June 2018 Board hearing. See June 2018 Board hearing transcript, p. 3. He indicated that he would waive a third hearing before a third VLJ in this case. Id. Therefore, the Board will proceed without a third Board hearing. 1. Neurological Conditions The Veteran contends that his neurological disabilities were caused by his in-service head injuries. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (internal quotation marks omitted). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic disabilities, including other organic diseases of the nervous system (such as neuropathy), are presumed to have been incurred in or aggravated by service if the disability manifest to a compensable degree within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To establish secondary service connection a Veteran must show: (1) the existence of a present disability; and (2) evidence that the present disability was either caused by the service-connected disability or that the service-connected disability increased the severity of (aggravated) the present disability. 38 C.F.R. § 3.310. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). After considering all information and lay and medical evidence of record, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In determining whether service connection is warranted for a disease or disability, VA must determine whether the evidence supports the claim, or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As to the first element required to establish service connection, post-service treatment records indicate that the Veteran had a diagnosis of peripheral sensory neuropathy in November 2008. VA treatment records note that the Veteran had a diagnosis of sciatica as early as January 2009. As to the second element required to establish service connection, that of in-service incurrence or aggravation of a disease or injury, the Veteran's service treatment records contain no evidence of a neurological disability. The Board notes that there is no actual evidence of a head injury in service. However, in a December 2020 decision, the Board found that the Veteran's account of a head injury in service was plausible and thus, conceded that the Veteran sustained a head injury in service. Thus, the remaining question that must be addressed in this case is whether there is competent and credible evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. In June 1968, private treatment records indicate the Veteran underwent an x-ray examination. The private provider found that the Veteran had a normal lumbar spine, and the impression was primarily lumbar sprain and right lumbar region contusion. In March 1969, private treatment records indicate that the Veteran was involved in motor vehicle accident in June 1968. The private treatment record noted a neurological examination found the Veteran's reflexes to be within normal limits. The private provider noted that the Veteran had some lumbosacral tenderness and decrease in motion; however, there was no evidence of neurological involvement. 1` In March 2021, the Veteran underwent a central nervous and neurological diseases, and thoracolumbar spine conditions examinations. Pertinent to this claim, the examiner diagnosed the Veteran with bilateral lower extremity radiculopathy (sciatica). During the examination, the Veteran reported that the onset of his sciatica began in the 1970s or 1980s after service. The examiner found that the Veteran had symptoms of radiculopathy, specifically sciatica. The examiner indicated that the Veteran underwent an MRI examination in December 2010, which demonstrated degenerative changes of the lumbar spine most pronounced at the L4/L5 and L5/S1 with possible compression on existing L4 nerve root traversing L5 nerve root on the right and possible compression of the existing L5 nerve roots bilaterally. The examiner opined that that the identified neurological condition of bilateral lower extremity radiculopathy was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran's radiculopathy to include back pain and sciatica began in the 1970s/1980s, after service. The examiner further explained that the medical record does not support that the identified radiculopathy was related to the caused by the in-service instance of a head trauma. The examiner explained that the radiculopathy did not began until the 1970s or 1980s after service. The examiner noted that the Veteran's psychiatric disorder did not cause or aggravate the Veteran's lumbar disability that caused the radiculopathy. As to the lay evidence of record, the Veteran has consistently contended that his neurological disabilities are related to his in-service head injury. In February 2012, the Veteran testified at a Board hearing. The Veteran's testimony described the head injury, and his now service-connected tremors. The Veteran did not describe any other neurological abnormality, to include any lower extremity radiculopathy or sciatica. In June 2018, the Veteran testified at another Board hearing. The Veteran stated that he had two head injuries in 1956. The Veteran stated that his back problems, specifically his peripheral neuropathy due to the pinched sciatic nerve are related to his head injury. The Veteran stated that he believed his head injury was related to his neurological issues because his injury in service was the only injury he recalled experiencing. The Veteran noted that he was in a car accident, however, he reportedly was not injured in that accident. In August 2021, the Veteran stated that his back pain became more pronounced as of the early 1970's. The Veteran stated that his pain was always present and worsening. The Veteran explained that the most recent VA examiner was not aware of his head injury at the time of the examination. The Veteran explained that he had an in-service injury that is more likely as not causing his current physical disability. The Veteran stated that as he was service connected for his forehead scar, he should be service connected for his other neurological disabilities. The Veteran noted that he had never stated or claimed that his injuries were psychiatrically related to his physical injuries. The Board finds that the Veteran has a current neurological disability of bilateral neuropathy related to the sciatic nerve. The Board finds that the Veteran had an in-service injury of head injury based on statements of the Veteran, his sister, and a February 2019 VA traumatic brain examination report. However, the Board also finds that the probative evidence is against finding that the Veteran's identified neurological disability of bilateral peripheral neuropathy is related to the Veteran's service, specifically his conceded in-service head trauma. The March 2021 VA examiner opined that the Veteran's bilateral peripheral neuropathy was less likely than not related to his in-service head injury. The Board has considered the Veteran's statement that the March 2021 VA examiner was not aware of his in-service head injury in service, or the fact that his forehead scar was service connected. However, the Board finds the March 2021 VA examiner's opinion related to the etiology of the Veteran's neurological conditions to be probative. The opinion was based on a review of the claims file and relevant facts, and the examiner provided a detailed rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds that the Veteran's statement that the examiner was not aware of his in-service head injury has no merit. In the March 2021 opinion, the examiner's rationale specifically cited the conceded the in-service head injury. The Board has further considered the Veteran's statements that his neurological pain began prior to the 1970s and that his pain was related to his head trauma in service. First, the Board finds the Veteran statement that he had pain prior to the 1970s competent and credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). However, the Veteran is not competent to determine whether that pain was caused by a neurological condition or that the neurological condition is related the Veteran's head injury. The Veteran is not competent to provide an opinion as to the etiology of his disabilities because such a question is not answerable by the application of knowledge within the realm of a lay person. See Layno, 6 Vet. App. at 469-70; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, the June 1968 and March 1969 private treatment records specifically found no neurological impairment. Such evidence indicates that the Veteran's bilateral lower extremity peripheral neuropathy condition began after 1969. Without any competent evidence that the Veteran's bilateral peripheral neuropathy is related to service, direct service connection is not warranted. Additionally, there is no indication that the disability manifested within one year of service, so service connection based on the chronic disease presumption is also not warranted. The Board further finds that the Veteran's bilateral neuropathy related to the sciatic nerve was not noted in service. The Veteran's treatments records do not indicate any complaint, treatment, or apparent symptom of lower extremity neuropathy in service. As a notation of such condition is a prerequisite for the application of chronicity and continuity of symptomatology, service connection on the theory of chronicity and continuity of symptomatology does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While the Board concedes that there was an in-service head injury, there is no in-service evidence of any neurological residuals in service including chronic neuropathy of the lower extremities. As noted above, the Board considered the Veteran's statements that he had pain prior to 1970s, presumably suggesting that such started in service or in close proximity thereto. As discussed above, the Veteran does not have the requisite skill or knowledge to diagnose an in-service neurological disorder, and on this point the Board accords greater probative weight to the contemporaneous records including the June 1968 and March 1969 private treatment records specifically noting no neurological impairment. Therefore, service-connection based on continuity of symptomology is not warranted. Finally, the Board finds that the Veteran has not raised the issue of secondary service connection for the identified neurological condition of bilateral lower extremity due to the Veteran's service-connected psychiatric disorder. In this regard, the record indicates that this issue was specifically raised in connection with the claim for service connection for tremors, a disability for which service connection has been established. Notably, the Veteran specifically stated he was not contending his neurological condition was caused or aggravated related to his psychiatric disability. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for his neurological condition other than tremors. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran's claim for service connection for neurological conditions other than tremors must be denied. S. L. KENNEDY Veterans Law Judge Board of Veterans' Appeals GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals K. PARAKKAL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.