Citation Nr: A21020624 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 200107-60204 DATE: December 29, 2021 ORDER Service connection for right upper extremity (RUE) peripheral neuropathy (PN) is granted. Service connection for left upper extremity (LUE) PN is granted. Service connection for right lower extremity (RLE) PN is granted. Service connection for left lower extremity (LLE) PN is granted. Service connection for bladder cancer is granted. Service connection for Parkinson's disease is granted. Service connection for hypothyroidism is granted. Service connection for colonic diverticula disorder is denied. Service connection for lymphedema is denied. Service connection for tubulovillous adenoma is denied. REMANDED Service connection for skin cancer. Service connection for a gastrointestinal (GI) disorder. Service connection for obstructive sleep apnea (OSA). FINDINGS OF FACT 1. The Veteran served on active duty from September 1959 to June 1986, to include service in the Republic of Vietnam. 2. Bilateral upper and lower extremity PN was incurred in service. 3. The Veteran was exposed to herbicides during his service in Vietnam and has been diagnosed with bladder cancer, hypothyroidism, and Parkinson's disease. 4. Colonic diverticula disorder, lymphedema, and tubulovillous adenoma were not incurred in, and may not be presumed to be incurred in, service. CONCLUSIONS OF LAW 1. RUE PN was incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2021). 2. LUE PN was incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2021). 3. RLE PN was incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2021). 4. LLE PN was incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2021). 5. Bladder cancer was incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2021). 6. Parkinson's disease was incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2021). 7. Hypothyroidism was incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2021). 8. Colonic diverticula disorder was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2021). 9. Lymphedema was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2021). 10. Tubulovillous adenoma was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In August 2017, the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), was signed into law. This law created a new framework for veterans dissatisfied with VA's decision on their claim to seek review. This decision has been written under the AMA guidelines. The rating decision on appeal was issued in December 2019. In January 2020, the Veteran appealed to the Board and selected the Hearing docket. He testified before a Veterans Law Judge in November 2020. A copy of the transcript has been associated with the record. Accordingly, the Board may only consider the evidence of record at the time of the prior decision, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may also be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 if a veteran served in the Republic of Vietnam between January 1962 and May 1975. Notwithstanding the foregoing provisions regarding presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Bilateral Upper and Lower Extremity Peripheral Neuropathy Initially, the Veteran has been diagnosed with bilateral upper and lower extremity PN in October 2017 and April 2019 private treatment records. Additionally, the regional office (RO) has identified current diagnoses of both upper and lower extremities as a favorable finding and the Board is bound by these findings. Thus, current diagnoses are shown, and the first element of service connection is met. Next, the Veteran's military personnel records (MPRs) and DD Form 214 reflects service in Da Nang during the Vietnam War. Additionally, subsequent RO decisions have reflected favorable findings conceding herbicide exposure in service. Thus, herbicide exposure is established. While early-onset PN is a disorder for which presumptive service connection has been established, he has been diagnosed with late-onset PN. Thus, the presumption based on herbicide exposure does not apply. Nonetheless, as noted, this does not preclude the Veteran from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this regard, February 2018 private treatment notes indicated that the Veteran had severe PN which might be related to his herbicide exposure. This relationship was reinforced by an August 2018 VA opinion. Specifically, after examining the Veteran and reviewing the treatment records, the VA examiner opined it was more likely than not that bilateral upper and lower extremity PN was related to service. The examiner reasoned that while the Veteran did not have diabetic PN, he had PN which was at least as likely related to service; however, no rationale was provided. In March 2020, the Veteran's longtime primary care doctor (DLF, DO) opined that PN was related to his exposure in service. The clinician cited medical articles and noted that extended exposure to herbicides has been shown to cause a delayed onset of PN. In December 2020, the Veteran submitted a private DBQ suggesting that PN was due to diabetes (DM). Importantly, he is service connected for DM. While it the evidence is in conflict on whether PN is due to service-connected DM, giving the Veteran the benefit of the doubt, service connection for PN is warranted. Bladder Cancer, Parkinson's Disease, and Hypothyroidism The RO has made favorable findings of diagnoses for bladder cancer, Parkinson's disease, and hypothyroidism. Further, herbicide exposure in service is conceded. These findings are binding on Board. Next, bladder cancer, Parkinsonism, and hypothyroidism have been added to the list of conditions presumptively associated with exposure to herbicide agents. 38 U.S.C. § 1116 (a)(2)(J) (as amended). Thus, the Veteran was shown to have diagnoses of bladder cancer, Parkinson's disease, and hypothyroidism and herbicide exposure has been conceded. Accordingly, the disorders are presumptively found related to the in-service exposure to herbicides, and service connection is granted. Colonic Diverticula Disorder, Lymphedema, and Tubulovillous Adenoma Initially, the RO reflected favorable findings of diagnoses for a colonic diverticula disorder, lymphedema, and tubulovillous adenoma. Thus, these findings are binding on the Board. The Veteran contends that these disorders are due to herbicide exposure; however, they are not on the presumptive list for herbicide exposure. Therefore, service connection on that basis is not warranted. As to an in-service incurrence, the service treatment records (STRs) do not show that the Veteran was treated for, or that these disorders began during service. In this regard, the service treatment records (STRs), including the March 1986 separation examination, are silent as to treatment for, or diagnoses of, any of these disorders. Therefore, the disorders were not noted in service. As to a medical nexus, the Veteran's private doctor linked the lymphedema and colonic diverticula disorder to in-service exposure to radiation; however, the clinician provided little to no rationale to support the rendered opinion. Moreover, sufficient levels of exposure have not been established. Specifically, July and December 2019 VA memoranda found that while the Veteran was exposed to some ionizing radiation in service, it totaled 0.136 REM, and that it did not meet or exceed an annual dose estimate of 5 REM in one year, or 10 REM in a lifetime as is required by VA standards. Thus, the level of ionizing radiation is insufficient for VA purposes. As the Veteran's main contention is that these disorders were due to exposure to ionizing radiation and that has not been established, greater probative weight is assigned to the VA memorandum which assessed the level of exposure. Therefore, the Board finds the VA memorandum opinion to be of great probative value. The Board has also carefully considered the articles submitted by the Veteran regarding any causal relationship between ionizing radiation exposure and these disorders. The Court has indicated that treatise evidence may suffice to establish nexus in instances where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Sacks v. West, 11 Vet. App. 314, 317 (1998). Significantly however, the Court has also held that treatise materials generally are not specific enough to show nexus, id. at 317, and that medical opinions directed at specific patients generally are more probative than medical treatises. Herlehy v. Brown, 4 Vet. App. 122, 123 (1993). Further, while medical treatise evidence can provide important support when combined with an opinion of a medical professional, such a medical nexus has not been provided. Mattern v. West, 12 Vet. App. 222, 228 (1999). Rather, the articles provided only a brief overview of the research studies without specifics to this Veteran's situation nor were the complete research studies of record. As such, this evidence is not dispositive, is assigned lesser probative value, especially when significant ionizing radiation exposure has not been established by the record. The Board has also considered the Veteran's lay statements that his disorders were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiologies of his current disorders due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND As to skin cancer, the Veteran has been diagnosed with actinic keratosis and basal cell cancer and squamous cell cancer which has been generally attributed both to herbicide exposure and to ionizing radiation but without a rationale or specific details on which caused the current disorder. As such, it was a pre-decisional error not to seek clarification and the issue is remanded for that reason. As to the GI and OSA claims, the Veteran has asserted, and indications have been shown in the medical record that OSA and GI problems, to include dysphagia and gastroesophageal reflux disease, may be related to the now service-connected Parkinson's disease. As a connection has been raised in the record, a remand is necessary to obtain an opinion assessing the etiology of the Veteran's disorders. The matters are REMANDED for the following actions: 1. Direct the claims file to a clinician to address the etiology of the Veteran's skin disorders. After a review of the file, the clinician is asked to address the following: Whether it is as likely as not that the Veteran's skin disorders are directly due to herbicide exposure and/or to ionizing radiation. In formulating the opinion, it is noted that exposure to herbicides has been conceded due to service in Vietnam. In addition, the Veteran's ionizing radiation exposure was found to total 0.136 REM and did not meet or exceed the annual dose estimate of 5 REM in one year or 10 REM in a lifetime. 2. Direct the claims file to a clinician to address the etiology of the Veteran's OSA and GI disorder. After a review of the file, the clinician is asked to address the following: whether it is at least as likely as not (50 percent probability or greater) an increase in severity of OSA and a GI disorder that is due to or the result of the now service-connected Parkinson's disease and not due to the natural progress of the disorders. 3. A thorough rationale should be provided for any opinion rendered. 4. If the clinicians determine that an examination(s) is/are necessary in order to provide the requested opinions, then one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.