Citation Nr: 21076308 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-40 633 DATE: December 23, 2021 ORDER Entitlement to service connection for cervical spine degenerative disc disease is granted. Entitlement to service connection for degenerative disc disease of the thoracolumbar spine is granted. Entitlement to service connection for peripheral neuropathy of the right lower extremity is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity is granted. Entitlement to service connection for peripheral neuropathy of the right upper extremity is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity is denied. Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for chronic obstructive pulmonary disease is denied. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's cervical spine condition is related to his service. 2. The evidence is at least in equipoise as to whether the Veteran's thoracolumbar spine condition is related to his service. 3. The evidence is at least in equipoise as to whether the Veteran's right lower extremity neuropathy is related to his service. 4. 4. The evidence is at least in equipoise as to whether the Veteran's left lower extremity neuropathy is related to his service. 5. The preponderance of the evidence is against a finding that the Veteran's diagnosed right upper extremity carpal tunnel syndrome is related to his active service. 6. The preponderance of the evidence is against a finding that the Veteran's diagnosed left upper extremity carpal tunnel syndrome is related to his active service. 7. The preponderance of the evidence is against a finding that the Veteran's diagnosed obstructive sleep apnea is related to his active service. 8. The preponderance of the evidence is against a finding that the Veteran's diagnosed chronic obstructive pulmonary disease is related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a thoracolumbar spine condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 6. The criteria for entitlement to service connection for left upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 7. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 8. The criteria for entitlement to service connection chronic obstructive pulmonary disease have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1966 to July 1968. These matters were previously addressed by the Board of Veterans' Appeals (Board) in August 2020, when the claims were reopened and remanded for examinations and consideration of additional evidence. The additional development has been completed and the case returns to the Board for adjudication. During the course of the appeal, the Veteran's claim for service connection for posttraumatic stress disorder (PTSD) was granted by the Agency of Original Jurisdiction (AOJ) in a March 2021 rating decision. As this constitutes a full grant of the benefit sought on appeal, the issue is no longer before the Board. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. The Board acknowledges that the Veteran has not been afforded a VA medical examination with respect to certain issues on appeal. VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board also considered the medical articles submitted by the Veteran. In certain instances, medical treatise evidence can constitute competent medical evidence, but generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive. See Wallin v. West, 11 Vet. App. 509, 514 (1998); Mattern v. West, 12 Vet. App. 222, 229 (1999). Here, the general medical articles do not contain any information or analysis specific to the Veteran. Therefore, they are of limited probative value and less persuasive than the medical opinions which are specific to this Veteran's circumstances and supported with rationale. While the Board cannot ignore or disregard a VA examiner's medical conclusions, Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). 1. Cervical Spine The Veteran contends that his cervical spine condition is related to his active service. The Board finds the evidence is at least in relative equipoise that his cervical spine condition is related to active service. In a letter received in April 2012, the Veteran's treating chiropractor reported that the Veteran had been treated for, among other things, his neck due to a reversed curve in his neck and degenerative joint disease (DJD). The provider opined that it was likely that the Veteran's current condition was permanent and was due to his described activities during service or carrying heavy 90mm gun across his neck and shoulders for miles each day. In an additional letter dated October 2012, the same provider stated that the Veteran's upper back and neck were kyphotic, associating this curvature and amount of degenerative arthritis as being present for many years. The provider opined that the Veteran's military service, including service in Korea has largely contributed to his current neck condition. On VA examination in June 2020, the Veteran's diagnosis was listed as degenerative disc disease (DDD) of the cervical spine. In the accompanying June 2020 opinion, the examiner stated that that Veteran's DDD of the cervical spine was less likely than not incurred in or caused by neck injury during service. Service treatment records are without report or evidence of neck injury during service, and medical reports indicated neck pain onset in 2013. Such lapse of time between discharge from service and time of diagnosis does not support a causal connection with service related events. The Board finds the evidence is at least in relative equipoise regarding this issue. The Board acknowledges the conflicting medical evidence and opinions of record. However, when the evidence is in relative equipoise, the benefit of the doubt doctrine provides that such reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for cervical spine DDD is warranted. 2. Thoracolumbar Spine The Veteran contends that his lumbar spine condition is related to his active service. The Board finds the evidence is at least in relative equipoise that his lumbar spine condition is related to active service. In a letter received in April 2012, the Veteran's treating chiropractor reported that the Veteran had been treated for, among other things, his low back pain due to scoliosis and degenerative joint disease (DJD). His X-rays were consistent with repetitive trauma. The provider opined that it was likely that the Veteran's current condition was permanent and was due to his described activities during service such as carrying over 50 pound rucksacks for miles each day. In an additional letter dated October 2012, the same provider opined that the Veteran's military service, including service in Korea has largely contributed to his current back condition. On VA examination in June 2020, the Veteran's thoracolumbar diagnosis was listed as DDD, with an onset of 2013. In the accompanying opinion, the examiner found that the Veteran's DDD of the thoracolumbar spine was less likely than not incurred in or caused by neck injury during service. Service treatment records are without report or evidence of neck injury during service, and medical reports indicated neck pain onset in 2013. Such lapse of time between discharge from service and time of diagnosis does not support a causal connection with service related events. The Board finds the evidence is at least in relative equipoise regarding this issue. The Board acknowledges the conflicting medical evidence and opinions of record. However, when the evidence is in relative equipoise, the benefit of the doubt doctrine provides that such reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for thoracolumbar spine DDD is warranted. 3. Peripheral Neuropathy Right Lower Extremity The Veteran contends that his diagnosed right lower peripheral neuropathy is related to exposure to extreme cold during active service. The Board finds the evidence is at least in relative equipoise that his right lower extremity neuropathy condition is related to active service. In a November 2017 opinion, the Veteran's treating podiatrist, Dr. DH, stated that the Veteran's severe neuropathy of the lower extremities with numbness, tingling, and burning which limits his walking, standing, and sitting, is a direct result of his service in Korea during the extreme cold weather. On VA examination in June 2020, the Veteran's right lower extremity condition was found to be diabetic neuropathy, with a date of onset of 2015. The Veteran reported pain, numbness, and tingling in the setting of diabetes. In the June 2020 opinion, the examiner stated that the Veteran's right lower extremity peripheral neuropathy of the left lower extremity is less likely than not incurred in or caused by neuropathy during service. Service medical records are silent for evidence to support an onset of peripheral neuropathy during service. Medical records since discharge show a diagnosis of diabetic neuropathy in approximately 2015. The examiner was unable to find a causal connection with service, due to absence of symptoms or diagnosis many years after discharge. The Board finds the evidence is at least in relative equipoise regarding this issue. The Board acknowledges the conflicting medical evidence and opinions of record, including evidence that the Veteran's peripheral neuropathy is due to his non-service connected diabetes mellitus. The Board notes that the Veteran has a pending claim for service connection of diabetes mellitus, Type 2, for which the Board does not have jurisdiction to consider at this time. However, when the evidence is in relative equipoise, the benefit of the doubt doctrine provides that such reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for right lower extremity peripheral neuropathy is warranted. 4. Peripheral Neuropathy Left Lower Extremity The Veteran contends that his diagnosed left lower peripheral neuropathy is related to exposure to extreme cold during active service. The Board finds the evidence is at least in relative equipoise that his left lower extremity neuropathy condition is related to active service. In a November 2017 opinion, the Veteran's treating podiatrist, Dr. DH, stated that the Veteran's severe neuropathy of the lower extremities with numbness, tingling, and burning which limits his walking, standing, and sitting, is a direct result of his service in Korea during the extreme cold weather. Conversely, on VA examination in June 2020, the Veteran's left lower extremity condition was found to be diabetic neuropathy, with a date of onset of 2015. The Veteran reported pain, numbness, and tingling in the setting of diabetes. In the June 2020 opinion, the examiner stated that the Veteran's left lower extremity peripheral neuropathy of the left lower extremity is less likely than not incurred in or caused by neuropathy during service. Service medical records are silent for evidence to support an onset of peripheral neuropathy during service. Medical records since discharge show a diagnosis of diabetic neuropathy in approximately 2015. The examiner was unable to find a causal connection with service, due to absence of symptoms or diagnosis many years after discharge. The Board finds the evidence is at least in relative equipoise regarding this issue. The Board acknowledges the conflicting medical evidence and opinions of record, including evidence that the Veteran's peripheral neuropathy is due to his non-service connected diabetes mellitus. The Board notes that the Veteran has a pending claim for service connection of diabetes mellitus, Type 2, for which the Board does not have jurisdiction to consider at this time. However, when the evidence is in relative equipoise, the benefit of the doubt doctrine provides that such reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for left lower extremity peripheral neuropathy is warranted. 5. Peripheral Neuropathy Right Upper Extremity The Veteran contends that his right upper extremity nerve condition is related to active service. The Board finds the preponderance of the evidence is against granting service connection for an upper right extremity nerve condition. In treatment records from July 2014, the Veteran reported numbness up to his elbows, present for a long time. He reported burning sensation and dropping things from his hands. The records showed right XL carpal tunnel splint, and the Veteran's elbow was stabilized. On VA examination in June 2020, the Veteran's right upper extremity condition was found to be carpel tunnel syndrome, with a date of onset of 2014. The Veteran reported pain, numbness, and tingling in his upper right extremity with weakness. In the June 2020 opinion, the examiner stated that the Veteran's right upper extremity peripheral neuropathy of the left lower extremity is less likely than not incurred in or caused by neuropathy during service. Service medical records are silent for evidence to support an onset of peripheral neuropathy during service. Medical records since discharge show a diagnosis of carpal tunnel syndrome in approximately 2014. The examiner was unable to find a causal connection with service, due to absence of symptoms or diagnosis many years after discharge. The Board finds the June 2020 medical opinion is competent and well-reasoned. The opinion considered the Veteran's lay contentions, and determined that his right upper extremity neuropathy was most likely unrelated to active service. There is no medical evidence to the contrary. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's claim for service connection for right upper extremity neuropathy. Therefore, the benefit-of-the-doubt does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 6. Peripheral Neuropathy Left Upper Extremity The Veteran contends that his left upper extremity nerve condition is related to active service. The Board finds the preponderance of the evidence is against granting service connection for an upper left extremity nerve condition. In treatment records from July 2014, the Veteran reported numbness up to his elbows, present for a long time. He reported burning sensation and dropping things from his hands. On VA examination in June 2020, the Veteran's left upper extremity condition was found to be carpel tunnel syndrome, with a date of onset of 2014. The Veteran reported pain, numbness, and tingling in his upper left extremity with weakness. In the June 2020 opinion, the examiner stated that the Veteran's left upper extremity peripheral neuropathy of the left lower extremity is less likely than not incurred in or caused by neuropathy during service. Service medical records are silent for evidence to support an onset of peripheral neuropathy during service. Medical records since discharge show a diagnosis of carpal tunnel syndrome in approximately 2014. The examiner was unable to find a causal connection with service, due to absence of symptoms or diagnosis many years after discharge. The Board finds the June 2020 medical opinion is competent and well-reasoned. The opinion considered the Veteran's lay contentions, and determined that his left upper extremity neuropathy was most likely unrelated to active service. There is no medical evidence to the contrary. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's claim for service connection for left upper extremity neuropathy. Therefore, the benefit-of-the-doubt does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 7. Obstructive Sleep Apnea The Veteran contends that his diagnosed obstructive sleep apnea (OSA) began during or is otherwise related to his active service. The Board finds the preponderance of the evidence is against a finding that the Veteran's OSA began during or is otherwise related to his active service. As a result of a July 2014 sleep study, the Veteran was diagnosed with obstructive sleep apnea. The diagnosis was confirmed on VA examination in June 2020. In the June 2020 opinion, the examiner stated that the Veteran's OSA is less likely than not related to service. There is no evidence to support onset of OSA during service. The diagnosis of OSA in 2014 was approximately 40 years after discharge from service. Even though the Veteran asserts that his OSA had its onset in service because he snored, the evidence does not provide report of trouble sleeping, snoring, or workup at time of service. Therefore, the examiner was unable to support a causal connection between service and OSA. The Board finds the June 2020 medical opinion is competent and well-reasoned. The opinion considered the Veteran's lay contentions, and determined that his OSA was most likely unrelated to active service. There is no medical evidence to the contrary. Further, while the Veteran is competent to report symptoms such as snoring, he lacks the medical qualifications to determine that the snoring he was informed of in service constituted the onset of his OSA, or that his OSA is otherwise the result of military service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's claim for service connection for OSA. Therefore, the benefit-of-the-doubt does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 8. Chronic Obstructive Pulmonary Disease (COPD) The Veteran contends that his diagnosed chronic obstructive pulmonary disease (COPD) was caused by exposure to smoke and dust during active service. The Board finds the preponderance of the evidence is against finding that the Veteran's COPD warrants service connection. On VA examination in June 2020, the Veteran's respiratory condition was listed as COPD with report of dyspnea with and without exertion, with an onset of 2009 based on X-ray findings. The examiner opined that the Veteran's COPD is less likely than not related to service. Service treatment records are silent for respiratory difficulty. The COPD diagnosis in 2009 was 41 years after discharge. The examiner was unable to find a link or causal connection without resort to mere speculation. The examiner considered the Veteran's assertion that his COPD was caused by breathing smoke and dust during service in Korea, but due to the multiple years between service and diagnosis, the examiner determined there was no connection. The Board finds the June 2020 medical opinion is competent and well-reasoned. The opinion considered the Veteran's lay contentions, and determined that his COPD was most likely unrelated to active service. There is no medical evidence to the contrary. Although the Veteran is competent to report that he breathed in smoke and dust during his Korea service, he lacks the medical qualifications to connect that experience in service to his diagnosed COPD. Jandreau; Davidson; Woehlaert. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's claim for service connection for COPD. Therefore, the benefit-of-the-doubt does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. Lee 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.