Citation Nr: 21009077 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 12-06 922 DATE: February 18, 2021 ORDER Entitlement to service connection for paresthesias of the left upper extremity, to include as secondary to service-connected disability, is denied. Entitlement to service connection for paresthesias of the right upper extremity, to include as secondary to service-connected disability, is denied. Entitlement to service connection for paresthesias of the left lower extremity, to include as secondary to service-connected disability, is denied. Entitlement to service connection for paresthesias of the right lower extremity, to include as secondary to service-connected disability, is denied. FINDINGS OF FACT 1. The preponderance of evidence shows that the Veteran’s left upper extremity paresthesias was not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 2. The preponderance of evidence shows that the Veteran’s right upper extremity paresthesias was not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 3. The preponderance of evidence shows that the Veteran’s left lower extremity paresthesias was not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 4. The preponderance of evidence shows that the Veteran’s right lower extremity paresthesias was not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for left upper extremity paresthesias have not been met or approximated. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 2. The criteria for service connection for right upper extremity paresthesias have not been met or approximated. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 3. The criteria for service connection for left lower extremity paresthesias have not been met or approximated. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 4. The criteria for service connection for right lower extremity paresthesias have not been met or approximated. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from July 1977 to July 1981, June 1982 to June 1984, and June 1984 to April 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in an August 2018 Board hearing. A transcript of the hearing is of record. The Board remanded the issues on appeal for additional development in February 2019. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). In February 2019, in addition to the paresthesias claims, the Board had remanded a service connection claim for an acquired psychiatric disorder. In a November 2020 rating decision, the RO granted entitlement to service connection for major depressive disorder with an evaluation of 50 percent effective from April 19, 2010. As such, the issue is no longer in appellate status before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection for Paresthesias Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, including paresthesias, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For paresthesias, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection for a qualifying paresthesias disability can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay 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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Evidence and Analysis The Veteran contends that his paresthesias in the upper and lower extremities is related to active service, in that it is secondary to his service connected hypertension disability, which was diagnosed in the 1980s. Specifically, the Veteran testified during the August 2018 hearing that the side-effects of the increased medication he was prescribed for hypertension caused the paresthesias of his upper and lower extremities. In the alternative, the Veteran has also asserted that his the paresthesias of his upper and lower extremities was caused by his mini strokes, which were caused by his hypertension disability. Service treatment records (STRs) are negative for evidence of any paresthesias or peripheral neuropathy through his separation from active duty in April 1988. The Veteran was diagnosed with paresthesias of his upper and lower extremities by a private physician, Dr. J.W.S., in March 2010, and the examiner noted the Veteran experiences numbing and tingling feelings in his upper and lower extremities. During the March 2010 medical examination, the doctor noted left side body numbness, as well as vibration and a pinprick sensation in both legs. The doctor linked the numbness to peripheral neuropathy and opined that the diagnosis may possibly be related to old strokes or “brain process.” However, Dr. J.W.S. did not provide a rationale for his medical opinion. The Veteran’s May 2010 VA examination for hypertension reported that the Veteran possibly has a history of mini-strokes, or transient ischemic attacks (TIAs) related to hypertension, based on descriptions of medical history. The examination also notes that the Veteran did not have residual symptoms of stroke related to hypertension. During a June 2014 VA examination for hypertension, the Veteran denied having a stroke and the VA examiner reported that there is no evidence of the Veteran having a stroke. In August 2010, the Veteran had a pain consultation with a VA pain specialist regarding complaints chronic lower back pain with radicular pain. The diagnosis of very mild anterolisthesis of L2 on L3 and L5 on S1 with reduction in flexion, along with right lumbar radiculopathy, for which the Veteran received steroid injections. Cervical pain with associated headaches was also noted, which this examiner associated with diagnosed degenerative arthritis. As this was for medical assessment and treatment, there was no opinion for service connection or discussion of etiology. In October 2014 VA, the Veteran was afforded a VA examination for peripheral neuropathy. The Board notes that paresthesia is related to peripheral neuropathy because paresthesia can be caused by disorders affecting the central nervous system (i.e., multiple sclerosis, stroke) or any of the peripheral nerves (carpel tunnel syndrome, atherosclerosis), and peripheral neuropathy is a general term indicating disturbances in the peripheral nerves. The VA examiner opined that the Veteran’s peripheral neuropathy is less likely than not proximately due to his hypertension because there is no evidence that the Veteran has been diagnosed with peripheral neuropathy based on a 2012 VA examination. In a November 2014, VA provided a peripheral nerves examination for the Veteran. The examiner diagnosed the Veteran with diabetic peripheral neuropathy of the bilateral lower extremities and bilateral upper extremities and opined that the condition, including his complaints of numbness and tingling, is most likely related to the Veteran’s non-service connected diabetes mellitus, diagnosed in 2011, and not his hypertension because high blood pressure does not cause neuropathy. No opinion for direct service connection was provided. Pursuant to the Board’s February 2019 remand, VA obtained two addendum opinions, in September 2019 and October 2020, to address and clarify the Veteran’s diagnosed paresthesias/neuropathy. The September 2019 VA examiner reviewed all of the evidence and opined that the upper extremity and lower extremity neuropathy was less likely than not, less than 50 percent probability, incurred in or caused by the claimed in-service injury, noting that the time from the Veteran’s last date of active service in April 1988 to the first diagnosis of any paresthesias or neuropathy in March 2010 was indicative of a lack of nexus. The Veteran has had a variety of medical issues since service, to include diabetes, hypertension, and other cardiac issues, but the examiner opined that they were not related. The examiner noted the Veteran’s hypertension medications and stated they are not established etiologies or aggravating factors of paresthesias in medical literature. This examiner also commented on the Veteran’s claim that his strokes contributed to his paresthesias by noting there was no evidence the Veteran had ever had a hemorrhagic stroke, and that a recent MRI showed no ischemic changes. The examiner commented on the 2015 VA treatment note that the Veteran may have had a TIA—transient ischemic attack, a mini-stroke, but that there were no formal medical diagnoses of such, and in any event, a stroke would affect the musculoskeletal system on one side, and would be unlikely to create a bilateral set of similar symptoms. The VA examiner provided a clarifying addendum opinion in October 2020. The examiner specifically also noted that the claimed condition of paresthesias or neuropathy is less likely than not, less than 50 percent probability, proximately due to or the result of Veteran’s service-connected hypertension. The examiner’s rationale was that hypertension does not cause paresthesias, considering it a “unique theory” and one that is unfounded in the literature. The examiner also noted the medications the Veteran takes for his hypertension do not medically relate in any known way to paresthesias and do not affect the nervous system in the symptomatology described by the Veteran. This examiner noted instead that the Veteran’s claimed paresthesias is a diabetic neuropathy and related to his diagnosed, but non-service-connected, diabetes mellitus type II. (CONTINUED ON NEXT PAGE) 1. Entitlement to service connection for paresthesias of the upper left extremity 2. Entitlement to service connection for paresthesias of the upper right extremity 3. Entitlement to service connection for paresthesias of the lower left extremity 4. Entitlement to service connection for paresthesias of the lower right extremity The Board finds the June 2014, October 2014, November 2014, September 2019, and October 2020 examinations and opinions to be of great probative value. The examiners went into detail with the Veteran’s medical and service history, conducted a thorough review of the claims file, and considered the Veteran’s contentions and clinical medical evidence before providing a negative opinion for both direct and secondary service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The negative VA opinions considered all of the Veteran’s contentions as to his theories of service connection for his peripheral neuropathy. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The VA examiners’ negative opinions were supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran’s contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). The Board acknowledges that the Veteran is competent to testify as to his belief that his paresthesias disabilities are related to service. In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; “[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of [his] personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran is competent to testify about his symptoms relating to his claimed paresthesias disabilities. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of a paresthesias disability. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. The Board also notes that the Veteran’s service records were silent for any paresthesias symptoms or related complaint, and his first complaint does not arise until March 2010 at the earliest. The Board finds the gap in time between the end of active service in April 1988 until the March 2010 possible occurrence of symptoms of the paresthesias or peripheral neuropathies to be probative of a lack of nexus between service and the current complaints. A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There are no competent medical opinions of probative value in favor of a positive nexus to active service from any VA examiner or medical treatment provider from any source. The Board does note the speculation of Dr. J.W.S., a private physician who examined the Veteran in March 2010, that the Veteran’s paresthesias “may” be due to previous strokes or brain processes, but also that no formed opinion as to etiology was made. In addition, the use of the words such as “possible,” “may,” or “can be” make a doctor’s opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127–28 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)) (medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor’s statement framed in terms such as “could have been” is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (“may or may not” language by physician is too speculative). As such, Dr. J.W.S.’s March 2010 speculative comments have only low probative value for this Veteran’s claim. Upon review of the record, the Board concludes that entitlement to service connection for a paresthesias disability of any of the upper or lower extremities is not warranted. The Board notes a current diagnoses of bilateral upper and bilateral lower paresthesias, and thus the requirement for a current disability is shown. The Board acknowledges the Veteran’s contentions, and the Veteran’s post-service statements are noted. The Board notes that the Veteran’s November 1976 entrance examination, his service treatment records, and his separation examination were all silent for any paresthesias symptoms, or related injury or incident that led to the paresthesias. The final physical of March 1988, a month prior to separation from active service, is silent for any existing paresthesias symptoms or related injury at the time of separation from active service, and there is no competent evidence to tie the current assertions to any in-service disease or injury. The Board thus finds the Veteran fails the third prong of the test for entitlement to direct service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. With regard to possible presumptive service connection for an organic disease of the nervous system, the weight of evidence shows no chronic symptoms of this condition during active service, no continuous symptoms of the condition since service, and that the condition did not manifest to a compensable degree within one year of service. As such, presumptive service connection for any paresthesias or neuropathy disability is not warranted. 38 C.F.R. §§ 3.303, 3.309. (CONTINUED ON NEXT PAGE) Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran’s claimed paresthesias disabilities were not incurred in service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a paresthesias disability of any extremity on a direct, secondary, or presumptive basis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.