Citation Nr: 21006894 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 17-66 913 DATE: February 5, 2021 ORDER Entitlement to service compensation for bilateral hearing loss is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity is denied. Entitlement to service connection for peripheral neuropathy of the right upper extremity is denied. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss was incurred during service. 2. The Veteran’s peripheral neuropathy of the left lower extremity was not incurred or aggravated during service, to include conceded herbicide agent exposure, and was not caused or aggravated by his service-connected prostate disability. 3. The Veteran’s peripheral neuropathy of the right lower extremity was not incurred or aggravated during service, to include conceded herbicide agent exposure, and was not caused or aggravated by his service-connected prostate disability. 4. The Veteran’s peripheral neuropathy of the left upper extremity was not incurred or aggravated during service, to include conceded herbicide agent exposure, and was not caused or aggravated by his service-connected prostate disability. 5. The Veteran’s peripheral neuropathy of the right upper extremity was not incurred or aggravated during service, to include conceded herbicide agent exposure, and was not caused or aggravated by his service-connected prostate disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service compensation for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from September 1967 to July 1969. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ) in January 2020. The hearing transcript is of record. The Board remanded the claim in August 2020 for further development by the RO. The case has been returned to the Board for further appellate action. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Additionally, if a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, such as early-onset peripheral neuropathy, may be service-connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service. 38 C.F.R. §§ 3.307(d), 3.309(e). Here, the Veteran’s military personnel records show that he served in Vietnam during the Vietnam Era; thus, exposure to herbicide agents is presumed. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). 1. Entitlement to service compensation for bilateral hearing loss The Board previously found that the Veteran has a current diagnosis of hearing loss for VA purposes, as the July 2016 VA examination showed hearing thresholds of 40 decibels or greater bilaterally at 3000, 4000, 6000, and 8000 Hertz. 38 C.F.R. § 3.385; see also August 2020 Board remand. The Board also previously found that in-service acoustic trauma was established by the record. 38 U.S.C. § 1154(a). The Board cited the Veteran’s testimony regarding close-range exposure to artillery firing at the January 2020 Board hearing, as well as the Veteran’s DD-214, showing service in Vietnam, the award of multiple combat medals, and that his military occupational specialty (MOS) was light infantry specialist. See August 2020 Board remand. Thus, the only question that remained before the Board was whether there was a nexus between the Veteran’s current bilateral hearing loss and service. To this end, a remand was necessary as the Board found the July 2016 VA medical opinion on the matter inadequate due to its improper reliance, in part, on the absence of hearing loss at separation from service. See Hensley v. Brown, 5 Vet. App. 1 55, 159-60 (1993). Pursuant to the remand directives, the RO obtained an October 2020 VA addendum medical opinion. However, this opinion is also inadequate. It concludes that bilateral hearing loss is less likely than not etiologically related to service due to a lack of evidence of an objectively verifiable noise injury during military service, to include other objective evidence of acoustic trauma. This conclusion is mistaken as the Board has found that the Veteran was indeed subject to acoustic trauma in service. The opinion does not address the Veteran’s lay statements regarding in-service noise exposure as directed; rather, the opinion relied on the lack of “objective” evidence of acoustic trauma. This is not the evidentiary standard. Based on the first two elements of service connection being satisfied, VA twice throughout the pendency of this claim sought a competent medical opinion regarding whether there is a causal relationship between the current bilateral hearing loss and the in-service injuries. The Board finds that none of the opinions of record adequately address the Veteran’s lay statements regarding in-service noise exposure. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current bilateral hearing loss is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity 3. Entitlement to service connection for peripheral neuropathy of the right lower extremity The Veteran seeks service connection on alternate theories of entitlement, to include as due to herbicide agent exposure and as secondary to his service-connected prostate disability. The Board notes that the Veteran is service connected for malignant neoplasm, claimed as prostate cancer, and prostate gland disability, status post-surgery, with erectile dysfunction. See December 2020 rating decision code sheet. The Board finds that the evidence of record does not support a finding of service connection for peripheral neuropathy of the left or right lower extremities. The Board notes at the outset that Veteran’s service treatment records (STRs) do not contain any record of complaints, treatment, or diagnosis of peripheral neuropathy during service. The June 1969 separation examination indicates normal extremities and neurologic condition. The STRs are not otherwise suggestive of peripheral neuropathy during service. The Veteran underwent a VA examination in October 2017. The examiner noted that the Veteran had peripheral nerve condition or peripheral neuropathy. The Veteran reported having progressive neuropathy following procedures to include lumbar spine surgery in the 1980s, right hip replacement in the late 1990s, right knee replacement in the early 2000s, and cervical spine fusion in the mid-2000s. The examiner also noted the Veteran’s prostate condition and treatment, as well as a lengthy history of performing physical labor. The examiner also noted that the Veteran’s knee pain began in the 1970s. The examiner opined that the condition was less likely than not proximately due to, the result of, or aggravated by the Veteran’s service connected prostate disability, reasoning that the musculoskeletal surgeries are the cause of the condition and that peer-reviewed medical literature does not support the contention that a prostatectomy can cause or aggravate bilateral extremity peripheral neuropathy. In August 2020, the Board found that the October 2017 medical opinion was inadequate, as it did not address medical evidence regarding a documented burning sensation in his thighs following the Veteran’s prostate surgery. The Board remanded to obtain an adequate addendum medical opinion to address this matter, as well as for an opinion on any etiological relationship with service due to herbicide agent exposure. The Board made certain findings pursuant to its remand in the August 2020 decision. The Board first noted that while early-onset peripheral neuropathy is a disease that is presumptively related to exposure to herbicide agents, peripheral neuropathy (other than early onset) such as the Veteran had claimed is not; further noting that this does not preclude service connection with proof of direct causation. 38C.F.R. §3.309(e); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Board also found that the Veteran competently and credibly testified at the January 2020 Board hearing that he first felt warmth in the bottom of his feet in service which continues to present day, and that medical records reflect complaints of numbness, tingling, and pain in the Veteran’s feet since at least August 2005. See, e.g., August 2005 and August 2018 private treatment records; March 2016 VA treatment records. On these bases, the Board pursued a remand. As the first and second elements of the service connection analysis were satisfied, the remaining question before the Board was whether there was a nexus with service or the service-connected disability. Pursuant to the remand directives, the RO obtained an October 2020 VA addendum medical opinion from the individual who performed the physical examination of the Veteran in October 2017. The examiner opined that the Veteran’s lower extremity peripheral neuropathy is less likely than not incurred in or caused by an in-service injury, event or illness. The examiner reasoned that the symptomatology and prior examination findings are suggestive of radiculopathy from the Veteran’s cervical spine, lumbar spine, and knee conditions, to include prior surgeries. His employment history of physical labor over many years likely contributes to his musculoskeletal conditions with radiculopathy. Regarding the Veteran’s reports of warmth in his feet, the contention that this is a manifestation of the current radiculopathy is not supported by objective evidence, as it is nonspecific and as these bottom-foot symptoms are consistent with lumbar nerve distribution status-post surgery in 2009. Furthermore, radiculopathy and neuropathic symptoms for musculoskeletal conditions are not presumptive of herbicide agent exposure. The examiner further noted in a subsequent clarification that the Veteran’s examination findings and neuropathy symptoms for both sets of extremities are consistent with radiculopathy due to his cervical and lumbar spine conditions, status-post surgeries, rather than peripheral neuropathy; radiculopathy is caused by the pinching of root nerves of the spine where peripheral neuropathy is due to damage of peripheral nerves outside of the brain and spine. The Board notes two flaws in the medical opinion and finds that, despite these flaws, the examination is adequate and probative. First, the examiner improperly relied on the lack of objective medical evidence of the Veteran’s reported warmth or burning sensation of the feet. However, this does not affect the examiner’s overall conclusion, based on her professional medical judgment and having performed a physical examination of the Veteran, that the symptoms reported by the Veteran are etiologically related to his musculoskeletal conditions and surgeries. The Board acknowledges the Veteran’s contention that these symptoms are a manifestation of his current condition or otherwise probative of an etiological relationship between his in-service symptoms and his current condition. However, while the Veteran is competent to report symptoms, he is not competent to provide a nexus opinion. The issue is medically complex. He does not have the requisite specialized knowledge, training, or credentials to make such determinations. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Further, neither the Veteran nor his representative has presented or identified any contrary medical treatments or medical opinion evidence that supports existence of a nexus between the current disability and service. Second, the examiner determined in a conclusory fashion that peripheral neuropathy is not presumptive of herbicide agent exposure and did not explicitly analyze whether there is any etiological relationship between exposure and these conditions. However, it is clear from the latter portion of the opinion that, while the examiner did not do so explicitly in this section, she did consider the relationship between neuropathy and herbicide agent exposure. This is further discussed below. Thus, the Board finds that the examiner’s opinion is adequate, despite the flaws noted above. The Board does not find that a remand to address these contentions is necessary, as there is no indication that the additional delay to do so would actually avail the Veteran of any benefit, and the current evidence is adequate for adjudication. The examiner next opined that the peripheral neuropathy of the lower extremities is less likely than not proximately due to or the result of the Veteran’s service-connected prostate disability. The examiner reasoned that the Veteran’s condition was due to his musculoskeletal conditions, as previously discussed. The examiner also opined that the peripheral neuropathy of the lower extremities is less likely than not aggravated beyond its natural progression by the prostate disability. The examiner reasoned that peer-reviewed medical literature does not support the contention that prostate cancer and treatment is an aggravating factor for radiculopathy, causing progression beyond its natural progression. Rather, worsening of musculoskeletal conditions and their associated symptoms are expected and naturally occur with aging and usage. The Board notes that while this opinion does not specifically address the Veteran’s private treatment records indicating some neuropathy symptoms following his prostate surgery, the examiner noted that she reviewed all records on file. That she did not comment on this specific record is consistent with her overall conclusion that the Veteran’s neuropathy is caused by his musculoskeletal conditions. Thus, the Board finds that the examiner’s opinion is adequate and probative. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). Thus, service connection for lower extremity peripheral neuropathy is not warranted. 4. Entitlement to service connection for peripheral neuropathy of the left upper extremity 5. Entitlement to service connection for peripheral neuropathy of the right upper extremity The Veteran seeks service connection on several alternate theories of entitlement, to include as due to herbicide agent exposure, an in-service shrapnel injury or in-service physical exertion, and as secondary to his service-connected prostate disability. The Board finds that the evidence of record does not support a finding of service connection for peripheral neuropathy of the left or right lower extremities on any of these alternate theories. The Veteran’s STRs do not contain any record of complaints, treatment, or diagnosis of peripheral neuropathy during service. The STRs are not otherwise suggestive of peripheral neuropathy during service. The Veteran underwent a VA examination in October 2017, as discussed above. In August 2020, the Board found that this examination was inadequate because the Veteran was not afforded an opinion regarding whether his upper extremity condition was etiologically related to service, to include carrying heavy equipment or incurring shrapnel wounds. The Board remanded the claim to obtain an addendum opinion. See August 2020 Board remand. As the first and second elements of the service connection analysis were satisfied, the remaining question before the Board was whether there was a nexus with service or the service-connected disability. Pursuant to the remand directives, the RO obtained an October 2020 VA addendum medical opinion from the individual who performed the physical examination of the Veteran in October 2017. The examiner opined that the condition was less likely than not incurred in or caused by service. The examiner reasoned that the Veteran’s shrapnel injury to the right forearm was superficial only. There was no evidence of a deep, penetrating shrapnel injury that would affect the soft tissues and underlying network of peripheral nerves. His condition is likely due to his cervical spine condition from many years of physical labor. Furthermore, there is no evidence that he suffered any injuries from lifting heavy equipment during service, as he was able to perform physically demanding work for many years following service. Lastly, there is no medical literature that supports the existence of causative relationship between herbicide agent exposure and development of cervical spine radiculopathy, claimed as upper extremity peripheral neuropathy. The examiner also opined that the peripheral neuropathy of the upper extremities is less likely than not proximately due to or the result of the Veteran’s service-connected prostate disability. The examiner reasoned that peer-reviewed medical literature does not support a nexus between cervical spine radiculopathy and prostate cancer residuals and treatment. The examiner further opined that peripheral neuropathy of the upper extremities is less likely than not aggravated beyond its natural progression by the prostate disability. The examiner reasoned that peer-reviewed medical literature does not support the contention that prostate cancer and treatment is an aggravating factor for radiculopathy beyond its natural progression. Rather, worsening of musculoskeletal conditions and their associated symptoms are expected and naturally occur with aging and usage. The Board acknowledges the lay statements of record and the assertion that the Veteran’s claimed disability is related to service. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex. He does not have the requisite specialized knowledge, training, or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Thus, although the Board has carefully considered the lay contentions of record suggesting that his upper extremity peripheral neuropathy began during service, the Board ultimately affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinion. Consequently, the Board affords more probative weight to the competent medical evidence of the October 2020 VA medical opinion. Here, the Board finds that the October 2020 VA medical opinion is based on an accurate medical and lay history as well as medical documentation provided in the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning). Additionally, the Board notes that neither the Veteran nor his representative have presented or identified any contrary medical opinion or treatment that supports existence of a nexus between the current disability and service.   As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). Thus, service connection for upper extremity peripheral neuropathy is not warranted. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, 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.