Citation Nr: 21007466 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 14-35 700 DATE: February 9, 2021 ORDER Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), 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. 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. FINDINGS OF FACT 1. A causal relationship between any current respiratory disability and an in-service incident has not been established. The preponderance of evidence is against a finding that any diagnosed respiratory disability is etiologically related to service or any incident or injury incurred during active service, or manifested within one year following separation from active service. 2. The Veteran has not been shown to have peripheral neuropathy of any extremity that is due to, etiologically related to, or aggravated by any event, disease, or injury incurred in service, or caused or aggravated by service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38C.F.R. §§3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to January 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In December 2018, the Veteran attended a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In June 2019, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. Service Connection Service connection will be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection will also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Secondary service connection will be established for a disability that is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). Lay testimony is competent when it addresses readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A Veteran is competent to provide testimony concerning factual matters of which the Veteran has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). 1. Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD). The Veteran claims that a currently diagnosed respiratory disability is due to herbicide agent exposure while in-service. Having considered the entire record of evidence, both lay and medical, the Board finds that the preponderance of evidence is against the claim for service connection for a respiratory disability. The Veteran’s service medical records do not show a diagnosis of, or treatment for any respiratory condition. The Veteran’s January 1969 separation examination noted normal lungs and chest; and noted no asthma, shortness of breath, pain or pressure in the chest, or chronic cough. With regard to a claim for service connection for a respiratory disability as due to herbicide agent exposure, the Board notes that, in its June 2019 Remand, the Board conceded herbicide agent exposure as a result of service in Thailand. Therefore, the Veteran is found to have been exposed to herbicide agents. However, the Veteran does not currently have a diagnosed respiratory disability that is presumed to be associated with herbicide agent exposure. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a), 3.309(e). Thus, presumptive service connection based on exposure to herbicide agents must be denied. The Board finds that the evidence of record is inefficient to establish entitlement to service connection by proof of direct causation due to herbicide agent exposure or directly as related to service, as the evidence does not show any competent opinion suggesting that the Veteran has a respiratory disability that is related to herbicide agent exposure. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). With regard to establishing service connection on a direct basis, the Board notes that evidence of record also is against a finding that a currently diagnosed respiratory disability is related to active service or any service-connected disabilities. A December 2019 VA examination diagnosed chronic obstructive pulmonary disease (COPD). After review of the claims file and in-person examination, the examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran did have a history of longstanding COPD (otherwise known as emphysema). He was a longterm smoker, over the course of about 20 years, quitting at age 60, approximately 11 years ago. The examiner was unclear as to exact date of the diagnosis but noted it dating back at least 20 years, according to the Veteran’s reports. The examiner stated that, to date, there was no evidence-based opinion that linked herbicide exposure to the development of COPD or emphysema. There was clear and non-debatable evidence of the direct link between cigarette smoking and COPD and emphysema. Because of the overall history and the lack of any current medical proof linking herbicide agents and COPD, it was less likely than not, less than 50 percent likely, that the Veteran’s COPD and emphysema were incurred during service due to herbicide agent exposure. In support of the claim, in addition to several written statements, the Veteran also provided testimony before the undersigned Veterans Law Judge during a December 2018 Board hearing. At that hearing, the Veteran discussed what he believed to be the cause of the respiratory disability and the effects the respiratory disability had on his life. The Veteran also submitted a January 2019 private respiratory medical opinion. The examiner stated that it is possible Agent Orange exposure contributed to the Veteran’s lung disease, but definitive confirmation was unable to be obtained with current diagnostic methods. The Board finds the January 2019 private medical opinion to be incomplete, as the examiner did not provide an adequate rationale to support the opinion.  A mere conclusion without an underlying rationale is of no probative value.  Miller v. West, 11 Vet. App. 345 (1998).  The examiner simply stated that the Veteran’s respiratory disability may have been contributed to by herbicide agent exposure.  However, the examiner did not provide any rationale for this opinion or explain how he arrived at this opinion.  The examiner did not properly explain what led to the opinion and cited no supporting evidence. Therefore, the Board finds the January 2019 private medical opinion to be less credible as it is speculative and without explanatory rationale. A finding that a disability may be caused by an exposure, also implies that it may not, and is speculative in nature.  Thus, the January 2019 private medical opinion does not establish that it is at least as likely as not that a respiratory disability was caused by an incident in service. The Veteran has not provided competent, medical evidence that supports a finding that it is at least as likely as not that any currently diagnosed respiratory disability is related to active service or service-connected disabilities. The Veteran has also submitted argument suggesting a link between the Veteran’s service and a currently diagnosed respiratory condition that comes from the Veteran himself. The Board acknowledges the Veteran’s assertions that a current respiratory disability is the result of herbicide agent exposure. However, the Board finds that the Veteran, as a lay person without the appropriate medical training and expertise in diagnosing and treating respiratory disabilities, is not competent to provide a probative opinion as to whether a respiratory disability was either caused by or aggravated beyond the natural progression by any incident of active service, or by any service-connected disability. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Veteran has not been shown to possess the adequate medical knowledge, education, or training, to competently opine to the diagnosis or etiology of any respiratory disability. While the Veteran may state that he experienced fatigue or shortness of breath, he is not competent to provide a diagnosis of a specific disability, or to opine as to the etiology of any disability as those issues fall outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That determination must be provided by a medical professional with the proper training, education and experience, in the appropriate fields. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It is to be noted that the Board is not free to substitute its own judgment for a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board finds the December 2019 VA examiner’s opinion to be competent, credible, and persuasive, and to constitute the most persuasive evidence of record. The December 2019 VA examiner opined that it was less likely than not that the respiratory disability was related to an incident of service, to include herbicide agent exposure. The Board finds the December 2019 VA examiner opinion to be more probative than the lay statements of record and the speculative private opinion. The opinion of the December 2019 VA examiner is highly probative because it is supported by detailed rationale and provided by a trained medical professional. The VA examiner specifically identified and discussed the Veteran’s contentions and theory concerning service and the claimed disability. Accordingly, the December 2019 VA examiner VA opinion is found to carry significant weight and to be the most persuasive evidence of record. Among the factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion he reaches. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). To the extent that the Veteran’s lay statements could be found to be competent and credible, the Board finds that they are outweighed by the December 2019 VA examination opinion because of the examiner’s medical training. The Veteran has not submitted any competent, probative, non-speculative medical evidence which supports a finding that a currently diagnosed respiratory condition is at least as likely as not related to service or a service-connected disability. Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim and against a finding that a respiratory disability was incurred in or is related to the Veteran’s honorable active service or a service-connected disability. The Board is sympathetic to the Veteran in that it is clear that the Veteran sincerely believes that a respiratory disability was caused by herbicide agent exposure while in service. However, the most persuasive evidence of record does not support that contention. The Board is appreciative of the Veteran’s faithful and honorable service to our country. However, as the preponderance of the evidence is against the claim of entitlement to service connection for a respiratory disability, the claim must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities. The Veteran asserts that currently diagnosed peripheral neuropathy of the upper and lower extremities is related to service or service-connected disability. Specifically, the Veteran asserts that the peripheral neuropathy was caused by service-connected diabetes mellitus. The service medical records do not show any complaints, findings, or diagnoses of any neurologic disability of the extremities. The Veteran’s January 1969 separation examination shows normal endocrine system, upper and lower extremities, and neurologic examination. During VA diabetes examination in March 2013, the examiner diagnosed impaired fasting glucose with no evidence of complications of diabetes. The examiner found that the Veteran’s fasting glucose was 115 and hemoglobin A1C was 6.4 which indicated impaired fasting glucose but did not meet the criteria for a diagnosis of type 2 diabetes mellitus. An April 2013 VA examination diagnosed with diabetic polyneuropathy involving all four extremities. The examiner stated that the Veteran is a known type 2 diabetic and had intermittent numbness and paresthesias involving all four extremities of moderate severity. The examiner cited no evidence or diagnostic testing to support the finding that the Veteran was a known diabetic. The medical evidence of record shows that the Veteran did not meet diagnostic criteria for diabetes mellitus type II until May 17, 2018, at the earliest. Because of the discrepancy and inconsistency between the March 2013 and April 2013 VA examinations, the Board, in a June 2019 Remand, ordered an examination to clarify the nature and etiology of the claimed diabetes mellitus and peripheral neuropathy. At a December 2019 VA examination, the examiner noted review of the entire claims file and in-person examination. The examiner diagnosed diabetes mellitus type II, but did not find the Veteran to have diabetic peripheral neuropathy. The examiner opined that the Veteran’s claimed peripheral neuropathic condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness; and that the claimed peripheral neuropathic disability was less likely than not (less than 50 percent probability) proximately due to or the result of the service-connected disabilities. The December 2019 examiner explained that longstanding diabetes is commonly accepted in the medical community as a cause of neuropathy. That was not a debatable subject but rather common medical knowledge. As published by the NIH.gov, there are several kinds of diabetic neuropathies: peripheral neuropathy, autonomic neuropathy, focal neuropathies, and less commonly proximal neuropathies. The most common is the distal peripheral neuropathy. As noted in the NIH.gov article published by the National Institute of Diabetes and Digestive and Kidney Diseases (niddk.nih.gov), the chances of developing neuropathy from diabetes increase with age and with the duration of the diabetes. Other things reported to increase the likelihood of nerve damage include overweight status, hypertension, elevated cholesterol, advanced kidney disease, alcohol, and smoking. The nerve damage is felt to be caused by changes in the blood vessels over time from the elevated blood sugars. That article notes that research suggests that up to half of those with diabetes have peripheral neuropathy and more than thirty percent have an autonomic neuropathy. About 25 percent of those with diabetes have some degree of carpal tunnel syndrome, a nerve compression at the wrist. Symptoms include numbness, burning, shooting pains, and/or advanced weakness in the hands or feet. The examiner further explained that in the Veteran’s case, he did not have longstanding diabetes. He had borderline labs and only recently has been deemed officially type 2 diabetic. The Veteran was not yet on medication as the numbers were still only just above borderline. The Veteran had signs of neuropathy in all four limbs bilaterally. The chart showed signs of neuropathy that preceded the diabetes. Therefore it was less likely than not, less than 50 percent likely, that the neuropathy was from diabetes and therefore less likely than not related to herbicide agent exposure. While it is unclear the exact date of the development of the neuropathy, it was clear within the last few years, and less likely than not related to any in service event or exposure. Regarding potential aggravation, the examiner opined that the claimed peripheral neuropathic disability was not at least as likely as not aggravated beyond the natural progression by a service-connected disability. The examiner reasoned that the claimed neuropathy preceded the diabetes, which diabetes was new and marginal in severity. There was no aggravation. The diabetes was new, and marginal in severity also. A diabetic neuropathy is impacted by severity and duration of diabetes. The Veteran was only recently diagnosed as slightly more than borderline diabetic. It was less likely than not then that the preexisting neuropathy had been aggravated by the new, early onset, mild diabetes type II. In support of the claim, in addition to several written statements, the Veteran also provided testimony before the undersigned Veterans Law Judge during a December 2018 Board hearing. At that hearing, the Veteran discussed what he believed to be the cause of the peripheral neuropathic condition and the effect it had on his life. There is also evidence that provides a link between the Veteran’s service and a currently diagnosed neuropathic disability that comes from the Veteran himself. The Board acknowledges the Veteran’s assertions that a current neuropathic disability is the result of service-connected diabetes mellitus. However, the Board finds that the Veteran, as a lay person without the appropriate medical training and expertise in diagnosing and treating neuropathic disabilities, is not competent to provide a probative opinion as to whether a neuropathic disability was either caused by or aggravated beyond the natural progression by any incident of active service, or by any service-connected disability. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Veteran has not been shown to possess the adequate medical knowledge, education, or training, to competently opine to the diagnosis or etiology of any neuropathic disability. While the Veteran may state that he experienced fatigue or pain, he is not competent to provide a diagnosis of a specific disability, or to opine as to the etiology of any disability as those issues fall outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That determination must be provided by a medical professional with the proper training, education and experience, in the appropriate fields. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board is not free to substitute its own judgment for a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board finds the December 2019 VA examiner’s opinion to be competent, credible, and persuasive. The December 2019 VA examiner opined that it was less likely than not that a claimed neuropathy disability was related to an incident of service or a service-connected disability. The Board finds the December 2019 VA examiner opinion to be more probative than the lay statements of record. The opinion of the December 2019 VA examiner is highly probative because it is supported by detailed rationale and provided by a trained medical professional. The VA examiner specifically identified and discussed the Veteran’s contentions and theory concerning service and the claimed disability. Accordingly, the December 2019 VA examiner VA opinion is found to carry significant weight and to be the most persuasive evidence of record. Among the factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). To the extent that the Veteran’s lay statements could be found to be competent and credible, the Board finds that they are outweighed by the December 2019 VA examination opinion because of the examiner’s medical training. The Veteran has not submitted any competent, probative medical evidence which supports a finding that a currently diagnosed neuropathic disability is related to service or a service-connected disability. The Board also finds that the December 2019 VA examiner opinion is more persuasive than the April 2013 examination which found diabetic polyneuropathy of the extremities. The December 2019 VA examiner explained why that finding was unlikely as the Veteran did not actually manifest diabetes until after that date. The December 2019 VA examiner also found that it was less likely that any neuropathy of the extremities was due to herbicide agent exposure, or caused or aggravated by service-connected diabetes mellitus. The examiner provided a plausible rationale for those opinions. Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim and against a finding that any neuropathic disability was incurred in or is related to the Veteran’s honorable active service or a service-connected disability. The Board is sympathetic to the Veteran in that it is clear that the Veteran sincerely believes that a peripheral neuropathic disability in all four extremities is related to service-connected diabetes mellitus. However, the most persuasive evidence of record does not support that contention. As the preponderance of the evidence is against the claim of entitlement to service connection for peripheral neuropathy in the upper and lower extremities, the claims for service connection must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.