Citation Nr: 21072988 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 15-30 615 DATE: December 7, 2021 ORDER Entitlement to service connection for circulation problems of the arms and legs to include as secondary to exposure to herbicide agents as well as service-connected diabetes mellitus, cervical spine disability, and bilateral shoulder disability is denied. FINDING OF FACT The Veteran does not have a current circulation problems of the arms and legs disability. CONCLUSION OF LAW Service connection for a circulation problems of the arms and legs disability, to include as secondary to a service-connected disability, is not warranted. 38 U.S.C. §§ 1110, 1131 (2012)38 C.F.R. §§ 3.303, 3.304, 3.310, 3.317 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service with the Navy from July 1967 to November 1970 and with the Army from May 1986 to September 2002 to include National Guard service. This matter is on appeal from an August 2014 rating decision. The Veteran was afforded an October 2018 hearing before the undersigned Judge. A transcript of the hearing has been associated with the record. In January 2020 and July 2021, the Board remanded this issue for additional development. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board observes that the Veteran served in the Republic of Vietnam. Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. §§ 1116; 38 C.F.R. § 3.307. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a) (6) (iii), 3.313(a). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and subacute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; Type II diabetes; Non-Hodgkin's lymphoma; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers; prostate cancer; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term "soft-tissue sarcoma" includes adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma; leiomyosarcoma; epithelioid leiomyosarcoma (malignant leiomyoblastoma); rhabdomyosarcoma; ectomesenchymoma; angiosarcoma (hemangiosarcoma and lymphangiosarcoma); proliferating (systemic) angioendotheliomatosis; malignant glomus tumor; malignant hemangiopericytoma; synovial sarcoma (malignant synovioma); malignant giant cell tumor of tendon sheath; malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas; malignant mesenchymoma; malignant granular cell tumor; alveolar soft part sarcoma; epithelioid sarcoma; clear cell sarcoma of tendons and aponeuroses; extraskeletal Ewing's sarcoma; congenital and infantile fibrosarcoma; malignant ganglioneuroma; and amyotrophic lateral sclerosis (ALS). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a) (6) (iii), 3.309(e), 3.313, 3.318. Factual Background and Analysis The Veteran's service medical records are negative for complaints or treatments for any arm or leg circulation problems. In a submitted March 1983 statement, the Veteran described that after moving home in 1977 he developed problems include a rash on the lower legs and aching in his upper back, shoulders and legs "once in a while, occurring for a couple years." In a September 2004 statement, the Veteran complained of experiencing problems with his hands and arms falling asleep. The Veteran has also submitted statements asserting that his circulation problems of his arms and legs as due to diabetes resulting from herbicide exposure in active duty service. In his October 2014 notice of disagreement (NOD) and August 2015 form 9 statements, the Veteran stated that he was suffering from circulation problems of the arms and legs due to his neck injury and herbicide exposure, noting he "may be suffering peripheral artery disease on the left... symptoms of lumbar radiculopathy." The Veteran underwent a VA examination in October 2015. The Veteran denied numbness, tingling or paresthesias of the left arm related to his neck disability or median nerve radiculopathy disability. The Veteran underwent a VA examination in December 2015. The Veteran presented with complaints of bilateral hand numbness that he reported began 13 to 14 years ago while he was in service. On examination, the examiner did not find a diagnosed for circulation problem in the arms. The examiner however did not conduct an examination for the Veteran's legs. The examiner noted that the Veteran's bilateral upper extremity was within normal limits as there was no diminished sensation. At the Veteran's November 2018 hearing, the Veteran testified to having circulation problems with his arms and legs and described feelings of tingling and pins and needles in his legs and arms while resting for the past 5 to 10 years. The Veteran asserted that these symptoms were because of his diabetes. The examiner found that for the claimed condition of circular problems of the arms and legs, there was no diagnosis as there were no findings, signs or symptoms to support a diagnosis. The Veteran underwent a VA examination in July 2020. The examiner noted that the Veteran did not have and has never had a vascular disease. The Veteran reported that his tingling and numbness began in 2000 and was in conjunction with him being diagnosed with diabetes. The examiner opined that it was less likely than not that the Veteran's claimed condition was incurred in or caused by the claimed in-service event, injury or illness as the Veteran did not have any circulation problems based on the ankle brachial index. The examiner also opined that it was less likely than not that the Veteran had a circulatory disability that was caused or aggravated by his service-connected diabetes mellitus. Under the circumstances of this case, the Board concludes that service connection is not warranted for circulation problems of the arms and legs disability as the Veteran had not been shown to have had a circulation problems of the arms and legs disability. The Board notes that the Veteran has been granted service connection for diabetes mellitus based on conceded herbicide exposure. The Veteran has also been granted service connection for right and left shoulder disabilities. Additionally, the Veteran had been diagnosed with median nerve radiculopathy, left upper extremity for which he is service connected for as secondary to his service-connected cervical spine disability. However, while significant treatment records have been associated with the record, none of these records contain evidence of a circulation problems of the arms and legs disability. Notably, per the January 2020 Board remand instructions, the Veteran underwent a VA examination in July 2020 for his claimed circulation problems of the arms and legs disability where the VA examiner specifically indicated that the Veteran did not have a circulatory disability of the arms or legs. Notably, the July 2020 VA examiner specifically indicated that the Veteran did not have and has never had a vascular disease it was less likely than not that the Veteran's claimed condition was incurred in or caused by the claimed in-service event, injury or illness as the Veteran did not have any circulation problems based on the ankle brachial index. Accordingly, neither the lay nor medical evidence of record supports a current diagnosis of the claimed circulation problems of the arms and legs disability as there is no evidence in the record of a circulation problems of the arms and legs disability. Hence, whereas here, the competent evidence establishes that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the instant appeal, the claim for a circulation problems of the arms and legs disability must be denied because the first criterion for the grant of service connection-competent evidence of the disability for which service connection is sought-is not met. The Board notes the Veteran and his representative's contentions regarding the etiology of the claimed circulation problems of the arms and legs disability. To the extent that the Veteran and his representative contend that a medical relationship exists between his claimed disability manifested by chest pain and his service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that a circulation problems of the arms and legs disability is not a disability subject to lay diagnosis as this diagnosis requires medical training. More significantly, the Veteran and his representative do not have the medical expertise to provide an opinion regarding the claimed circulation problems of the arms and legs disability etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the VA examiner provided detailed rationales in support of his opinions and cited to the relevant evidence. For this reason, the VA examiner's opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). Thus, the Veteran assertions that there is a relationship between his claimed circulation problems of the arms and legs disability and his service are not sufficient in this instance and are outweighed by other probative evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the Board finds that service connection for a circulation problems of the arms and legs disability must be denied. 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 claim, 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). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.