Citation Nr: 21073859 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 19-09 779 DATE: December 10, 2021 ORDER Entitlement to service connection for a back disability is granted. Entitlement to service connection for peripheral neuropathy of the lower extremities is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the upper extremities is remanded. FINDINGS OF FACT 1. The Veteran's back disability was at least as likely as not incurred during service. 2. The Veteran's peripheral neuropathy of the lower extremities was caused by or is the result of his service-connected back disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for peripheral neuropathy of the lower extremities, as secondary to a back disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service in the U.S. Army from January 1968 to September 1969. Unfortunately, the Veteran died during the pendency of the appeal in June 2020. The appellant is his surviving spouse. Initially, the Board extends its sincere condolences to the appellant for the loss of her husband and recognizes the valuable service that he provided to this country in the United States Army. A September 2020 letter reflects that she has been accepted as the Veteran's substitution for purposes of processing his appeal to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010; see also 79 Fed. Reg. 52,977-52,985 (Sept. 5, 2014). This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). This matter was previously before the Board in October 2019, October 2020, and April 2021, at which point the claim was remanded for additional development. The most recent VA opinion were offered in March and September 2021. The Board finds that these opinions are inadequate. While the Board regrets additional delay, remand is necessary as it pertains to the Veteran's service connection claim for upper extremity neuropathy. However, the Board finds that remand is not required for the Veteran's service connection claims pertaining to his back disability and lower extremity neuropathy in light of the grant of service connection. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 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. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Additionally, service connection may be granted on a secondary basis when the evidence establishes (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); 38 C.F.R. § 3.310. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he or she served, his or her medical records, and all pertinent medical and lay evidence. See 38 C.F.R. § 3.303 (a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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, 492 F.3d at 1377; and Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). 1. Entitlement to service connection for a back disability. The Veteran maintained that his back disability is connected to service. Specifically, the Veteran reported that he injured his back during service and that his symptoms persisted after separation. The Board agrees and finds that the elements of service connection have been satisfied. With respect to current disability, the Veteran was diagnosed with degenerative arthritis, intervertebral disc syndrome (IVDS), and spondylolisthesis in 1998. In December 2019, a VA examiner also provided these diagnoses on examination. This evidence establishes that a current disability was present. With regard to in-service incurrence, the Veteran reported that he jumped out of airplanes during training while attached to an airborne unit. He also reported that he injured his back when he fell off a field truck in 1968. He indicated that he was covered in gas and slipped off. The Board notes that the Veteran is competent to report symptoms and observable events within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470-471 (1994); Jandreau, 492 F.3d at 1377. Furthermore, the Board finds no reason to doubt the credibility of these statements, as they have been consistent throughout his appeal. Moreover, the Veteran made these reports during the course of treatment. Accordingly, the Board finds that the Veteran's competent and credible lay statements sufficiently establish the in-service incurrence element of this claim. The remaining question is whether there is a nexus between the Veteran's in-service incurrence and his back disability. The record contains numerous opinions addressing this question. In September 2017, a private treating clinician concluded that Veteran's injuries and illnesses, which include a back condition and peripheral neuropathy, were related to his military service as a parachutist and his time in Vietnam. However, the clinician did not provide a rationale for this opinion and the Board finds that it has no probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions."). Next, a VA examiner concluded in December 2019 that the Veteran's back disability was less likely than not incurred in or caused by service. In support of this conclusion, the examiner noted that there are no medical records to support a back injury while in service. However, the examiner failed to consider the Veteran's competent and credible lay statements with respect to the Veteran's back injury from a fall off a field truck during service. Accordingly, the opinion is based on an inaccurate factual premise and is inadequate. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In March 2021 and August 2021, two additional VA examiners concluded that the Veteran's back disability was less likely than not incurred in or caused by service. The March 2021 examiner reasoned that service treatment records (STRs) are negative for any back injury or complaints during active service and the first documented complaints for treatment of back pain was in 1998, which is nearly 30 years after separation from service. The examiner elaborated that the Veteran's reports of continuity of symptoms since his in-service fall were credible, but the Veteran was not qualified to ascribe those symptoms to a diagnosis or etiology. Meanwhile, the August 2021 examiner concluded only that there is no documentation in the STR's to support the Veteran's reports of parachute jumps or falling off a truck during service. The Board finds that both of these opinions are inadequate. As noted, the Veteran has reported during the course of treatment that he had back problems since falling off a field truck during service and the Board finds these statements to be competent and credible. Additionally, the Veteran told a treating doctor in 2003 that an old vertebral fracture was discovered when he was initially evaluated for back pain in 1991. The Board notes that "lay evidence can be competent and sufficient to establish a diagnosis of a condition when the layperson is reporting a contemporaneous medical diagnosis." Jandreau, 492 F.3d at 1377; and Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). There is no reason to doubt the credibility of the Veteran's reports, as they were made during the course of treatment. Accordingly, no weight is afforded to the March 2021 and August 2021 VA opinions. Given that there is no adequate negative or positive opinion on record, the competent and credible statements made by the Veteran are highly probative in establishing a nexus. See 38 C.F.R. § 3.303(a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence); see also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). Accordingly, the Board finds that the most probative evidence of establishes a nexus between service and the Veteran's current back disability. 2. Entitlement to service connection for peripheral neuropathy lower extremities. The Veteran maintained that his peripheral neuropathy of the lower extremities is caused by his service-connected back disability. In the alternative, the Veteran maintained that his peripheral neuropathy was caused by his exposure to Agent Orange. The Board finds that the evidence establishes that the Veteran's neuropathy of the lower extremities is secondary to his service-connected back disability. Accordingly, there is no need to address the Veteran's theory of service connection due to Agent Orange exposure. With respect to current disability, the Veteran reported that he developed a tingling in both hands and burning in the feet in 2010 and was put on medication by a private doctor in 2015. Additionally, a December 2019 VA examiner noted a diagnosis in 2015 of peripheral neuropathy of the lower extremities. Accordingly, the Board finds that a current disability has been established. The remaining question is whether the Veteran's peripheral neuropathy of the lower extremities was either caused by or aggravated by his service-connected back disability. The record contains numerous positive and negative medical opinions addressing this question. In September 2017, a private treating clinician concluded that Veteran's injuries and illnesses, which include a back condition and peripheral neuropathy, were related to his military service as a parachutist and his time in Vietnam. However, the clinician did not provide a rationale for this opinion and the Board finds that it has no probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions."). Accordingly, the Board finds that this opinion is inadequate. In December 2019, a VA examiner provided a negative opinion for the Veteran's peripheral neuropathy claim. The examiner reasoned that the Veteran's claims file is silent for complaints of neuropathy during service. The examiner further concluded that she could not claim without a reasonable doubt that herbicide exposure in Vietnam was the cause of the Veteran's peripheral neuropathy. However, the examiner applied the wrong legal standard in rendering her opinion. The applicable standard in service connection cases is "as likely as not," not "beyond a reasonable doubt." As the examiner's opinion applies an evidentiary standard substantially higher than the "as likely as not" standard applicable under VA law and regulation, it is inadequate. See Hodges v. Sec'y of Dep't of Health and Human Servs., 9 F. 3d 958, 965 (Fed. Cir. 1993); Jones v. Shinseki, 23 Vet. App. 382, 388 n.1 (2016). In March 2021, another VA examiner provided a negative opinion. This examiner concluded that the Veteran's peripheral neuropathy of the lower extremities was caused by multiple back conditions, including degenerative disc disease and IVDS, which were not diagnosed until 1998. From this evidence, the examiner concluded that the Veteran's neuropathy had specific etiology that developed well after separation from service, and therefore, there is no connection between these conditions and the Veteran's active duty or herbicide exposure. However, the Board has concluded that the Veteran's current back disabilities were related to his service. Because this opinion is based on an inaccurate factual premise, the Board finds that it is inadequate. See Reonal v. Brown, 5 Vet. App. 548 (1993). Nevertheless, the March 2021 VA examiner's conclusion that the Veteran's peripheral neuropathy was caused by his multiple back conditions is highly probative. Accordingly, the most probative evidence of record establishes that the criteria for entitlement to service connection for peripheral neuropathy of the lower extremities secondary to the Veteran's service-connected back disability have been established. Thus, service connection for peripheral neuropathy is granted on a secondary basis. REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy upper extremities is remanded. The Veteran maintained that his peripheral neuropathy of the upper extremities is caused by his service-connected back disability. In the alternative, the Veteran maintained that his peripheral neuropathy of the upper extremities was caused by his exposure to Agent Orange. In September 2017, a private treating clinician concluded that Veteran's injuries and illnesses, which include a back condition and peripheral neuropathy, were related to his military service as a parachutist and his time in Vietnam. However, the clinician did not provide a rationale for this opinion. Accordingly, the Board found that this opinion was inadequate and remanded the claim in October 2019. On remand, a VA examiner provided a negative opinion in December 2019. The examiner reasoned that the Veteran's claims file is silent for complaints of neuropathy during service. The examiner further concluded that she could not claim without a reasonable doubt that herbicide exposure in Vietnam was the cause of the Veteran's peripheral neuropathy. However, the examiner applied the wrong legal standard in rendering her opinion. Accordingly, the Board remanded the claim again in October 2020 to obtain an addendum opinion. On remand, another VA examiner provided a negative opinion in March 2021. This examiner concluded that the Veteran's peripheral neuropathy of the upper extremities was caused by a motor vehicle accident in 1991, which caused a cervical spine injury and resulted in a cervical fusion in 1994. From this evidence, the examiner concluded that the Veteran's neuropathy had specific etiology that developed well after separation from service, and therefore, there is no connection between these conditions and the Veteran's active duty or herbicide exposure. While the examiner addressed whether the Veteran's peripheral neuropathy was caused by his back disability, she did not consider whether the Veteran's back disability aggravated his neuropathy of the upper extremities. Accordingly, the Board finds that this opinion is inadequate. Based on the foregoing, a remand is warranted in order to obtain an addendum opinion to determine the etiology of the Veteran's upper extremity peripheral neuropathy. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate VA examiner to assess the nature and etiology of the Veteran's peripheral neuropathy of the upper extremities. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner should then address the following. A thorough rationale is required for all conclusions: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's peripheral neuropathy of the upper extremities was caused by the Veteran's service-connected back disability. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's peripheral neuropathy of the upper extremities was aggravated by the Veteran's service-connected back disability. 2. After ensuring that the opinion complies with the terms of this remand, the AOJ should re-adjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.