Citation Nr: 21009091 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-18 447 DATE: February 18, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as due to herbicide exposure and as secondary to service-connected diabetes, is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam War Era, and he is presumed to have been exposed to herbicide agents during that time. 2. The Veteran’s peripheral neuropathy of the bilateral upper extremities did not manifest in service or within one year of separation from service, or show symptoms continuously since service, was not caused by herbicide exposure, and is not caused or aggravated by the Veteran’s service-connected diabetes. CONCLUSION OF LAW The criteria for entitlement to service connection for peripheral neuropathy of the bilateral upper extremities have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Navy from June 1964 to January 1984. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran’s April 2016 VA Form 9, Appeal to Board of Veterans’ Appeals, the Veteran requested to appear at a hearing before the Board. In correspondence received in March 2017, the Veteran withdrew his hearing request. 38 C.F.R.§ 20.704(e). In October 2018, the Board remanded the Veteran’s appeal to the RO for further evidentiary development. After the Board’s remand order and after the RO issued a July 2020 Supplemental Statement of the Case (SSOC), the Veteran filed a VA Form 10182 Decision Review Request, Board Appeal, that was signed in October 2020, and received in February 2020, for this claim. The Veteran specifically requested direct review based on the July 2020 SSOC. However, as it was filed more than 60 days after the July 2020 SSOC, the VA Form 10182 was not timely to opt-in to the Appeals Modernization Act (AMA) appeals process. The Board also acknowledges that in correspondence received in February 2018, the Veteran attempted to opt into the Rapid Appeals Modernization Program (RAMP); however, the request was received at a time when the appeal was no longer eligible for RAMP opt-in. Accordingly, the rating decision on appeal is still in the legacy (non-modernized) system, which allows the Board to consider all evidence of record in reaching its decision. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Entitlement to service connection for peripheral neuropathy of the left and right upper extremities The Veteran has contended that his neuropathy of the bilateral upper extremities was caused by exposure to herbicides during service in Vietnam, or else is secondary to his service-connected diabetes mellitus, type II. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection requires: (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 disability and the disease or injury incurred or aggravated during service - which is the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases (such as peripheral neuropathy as an organic disease of the nervous system) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307, 3.309. If a condition listed as a chronic disease in § 3.309(a) is noted during service but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain diseases associated with Agent Orange exposure in service are presumed to be service connected if the disease is manifested to a compensable degree within a specified time period. 38 C.F.R. §§ 3.307, 3.309. If a Veteran was exposed to a herbicide agent, including that found in Agent Orange, during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. Such diseases include early-onset peripheral neuropathy manifested to a degree of 10 percent or more within one year after the last date on which the Veteran was exposed to an herbicide agent during active service. See 38 C.F.R. § 3.307(a)(6)(ii). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence of (1) a current disability for which service connection is sought; (2) an already service-connected disability; and (3) that the disability for which service connection is sought was either (a) caused or (b) aggravated by the already service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Turning to the evidence, the Veteran’s service treatment records do not contain any complaint, diagnosis, or treatment of upper extremity conditions or neurological problems. The Veteran’s December 1983 separation medical examination described his upper extremities and his neurologic system as normal. The Veteran’s personnel records indicate that he served aboard the U.S.S. Currituck from December 1966 to October 1967. The Veteran underwent a VA examination for peripheral neuropathy in his lower extremities in November 2009. At that time, he denied any sensory abnormalities in his upper extremities. The Veteran underwent another VA examination for peripheral neuropathy in January 2013. The examiner found no symptoms in his upper extremities other than decreased responses in the deep tendon reflexes of his left biceps and both biceps, and the examiner concluded that there was no upper extremity diabetic peripheral neuropathy. An August 2013 private treatment record found that it was likely that the Veteran had peripheral neuropathy of the upper extremities. The Veteran underwent a VA examination for peripheral neuropathy in March 2014. The examiner said that the Veteran reported no pain or numbness in his upper extremities. On examination, the Veteran’s deep tendon reflexes were normal and his sensation to light touch was normal. The examiner concluded that the Veteran did not have peripheral neuropathy in the upper extremities. A July 2014 private treatment record from Dr. P. lists “neuropathy in diabetes” for the upper and lower extremities. A July 2015 treatment record from the Veteran’s private neurologist Dr. E. D. states that he had a nerve conduction study done in 1998 when he had hand numbness. The record states that left carpal tunnel release surgery was completed at some point but there was no response due to the severity of the nerve damage at the time the surgery was performed. Dr. E. D. stated that the nerve injury was severe when the nerve conduction study was done in 1998. In September 2015, Dr. E. D. performed a monopolar needle EMG. She found prolonged distal latency, decreased amplitude and normal conduction velocity in the Veteran’s bilateral ulnar motor nerves. The bilateral median sensory nerves revealed prolonged distal latencies with normal amplitudes. The doctor diagnosed was of severe median neuropathy most consistent with entrapment at the wrist, and severe ulnar neuropathy, most consistent with entrapment at the elbow. In April 2016, Dr. A. D. wrote a letter stating that “the neuropathy [of upper and lower extremities] was a consequence of problems he had with his diabetes.” In October 2018, the Veteran’s primary care provider Dr. P. wrote a letter which stated that the Veteran “is currently under my medical care. [The Veteran] has been diagnosed with bilateral carpal tunnel, which causes severe pain, weakness, and is worsened by his diabetes.” In July 2019, VA prepared a Disability Benefits Questionnaire and Medical Opinion. The examiner performed an in-person examination and reviewed the Veteran’s e-folder. Concerning the Veteran's upper extremities, the examiner diagnosed bilateral entrapment ulnar neuropathy at the elbow, left > right, which was first diagnosed in September 2015. On examination, the Veteran had mild constant pain, no intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness in his bilateral upper extremities. His muscle strength was normal in his grip, his pinch, and on wrist and elbow flexion and extension. Biceps and triceps and brachioradialis reflexes were also normal. His sensation to light touch was normal in both upper extremities, but the examiner described the sensation in the Veteran's hands and forearms as “patchy.” The Veteran’s radial, musculocutaneous, circumflex, and long thoracic nerves were unaffected, but his bilateral median nerves and ulnar nerves showed mild incomplete paralysis. The Veteran said “I have [Dr. P.] for my SC DM care. I have been diabetic for a long time. I was having numbness in both my hands & was dropping stuff. Thus [sic] was some time in 2015, thus had EMG/NCS showed CTS & Pinched nerve at the elbow right and left. I am left-handed. My Left side was worst than right, thus had Carpal Tunnel Released surgery, this did not work at all so no more surgery. I see a neurologist who gave me GBP, this helps with the burning pain & less dropping things. It’s about the same since 2015, I have to be careful otherwise I drop things mainly due to pain.” The examiner noted that in September 2015, the Veteran was diagnosed with bilateral entrapment median neuropathy at the wrist and bilateral entrapment ulnar neuropathy at the elbow. In the July 2019 VA medical opinion, the examiner first concluded that it was less likely than not that the Veteran’s condition onset during or was caused by his service, including herbicide agent exposure, because there is no evidence of symptoms during or within a year after separation from service, and the records indicate that it onset approximately 30 years after separation from service. The examiner then concluded it was less likely than not caused by the Veteran’s service-connected diabetes because the entrapment neuropathy diagnosed in 2015 and diabetic neuropathy are two entirely different conditions with no pathophysiological correlation, and the weight of peer-reviewed medical literature is against a relationship (cause, affect, or aggravation) between the service-connected diabetes and the entrapment neuropathy. Finally, the examiner said that there was no evidence that the Veteran’s condition had been aggravated beyond the natural progression of bilateral entrapment neuropathy. At the RO’s request, an addendum medical opinion was prepared in October 2020. First, the doctor preparing the addendum noted that the Veteran’s private neurologist (Dr. E. D.) had concluded that the lower extremity symptoms were due to diabetes mellitus and the upper extremity symptoms were due to compression (carpal tunnel syndrome.) The doctor noted that the neurologist made her diagnosis based on the results of the EMG and NCS testing. The examiner said that the neurologist had reached her conclusion based on analysis of the length-dependent effects and the findings of compression in the nerve conduction studies. Secondly, the VA doctor said that it was less likely than not that the upper extremity symptoms were aggravated beyond their natural progression by diabetes mellitus type II and/ or a superimposed diabetic neuropathy because his medical records do not show neuropathic evidence of diabetes mellitus type II in his upper extremities. The VA doctor said that it is possible, but not probable, based on the evidence from the private neurologist Dr. E. D. She said that the latest notes from the Veteran’s primary care provider are unclear as to whether the Veteran has had more recent EMG/NCS testing, and said that if the evidence from the primary care provider and the neurologist are in conflict, the neurologist’s opinion holds more probative value because she is a specialist. Applying the criteria for direct service connection, the Veteran has a current disability in his diagnosed peripheral neuropathy of the bilateral upper extremities. As the Veteran served aboard the U.S.S. Currituck and the U.S.S. Currituck is classified as a ship operating on Vietnam’s close coastal waters, it is presumed that the Veteran was exposed to herbicide agents. Thus, the first two criteria for direct service connection have been met. Shedden, 1166-67. However, the evidence is against a finding that the Veteran’s peripheral neuropathy of the upper extremities onset during or was caused by his military service, including herbicide exposure. The July 2019 VA medical examiner concluded that it was less likely than not that the Veteran’s condition onset during or was caused by his service, including herbicide agent exposure. As the examiner provided a thorough rationale for the opinion, the opinion is probative. The VA addendum medical opinion of October 2020 also holds substantial probative value, as it is based on a review of the Veteran’s examination records, and that opinion states that the EMG results of September 2015 indicate that the Veteran had entrapment radiculopathy, not radiculopathy caused by toxins. The Veteran’s separation examination indicated that his upper extremities and his nerves were normal at that time. The Board notes that the record does not contain a medical opinion indicating that the Veteran’s peripheral neuropathy of the upper extremities was caused by his service or exposure to herbicide agents. Without a showing that the Veteran’s service caused the present disability, direct service connection cannot be established. Shedden, 1166-67. Presumptive service connection for herbicide exposure is not available in this case. Only early-onset peripheral neuropathy is subject to the herbicide presumption. 38 C.F.R. § 3.309(e). And to qualify for the herbicide presumption, early-onset peripheral neuropathy must manifest within one year of the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). There is no evidence that the Veteran’s peripheral neuropathy manifested within one year of the Veteran’s departure from the coastal waters of Vietnam, and thus service connection cannot be established by the presumption for herbicide-exposed veterans. Peripheral neuropathy is an organic disease of the nervous system and is therefore considered by VA to be a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. The record does not show that the Veteran had complaints, symptoms, diagnosis, or treatment for any peripheral neuropathy symptoms during or within one year after his service. In July 2015, the Veteran’s private neurologist Dr. E. D. indicated that the Veteran had symptoms in 1998. The December 1983 separation medical examination stated that his upper extremities and neurological system were normal, and the Veteran has not stated that his symptoms manifested to a compensable degree within one year of his separation from service in January 1984 or that he has had symptoms continuously since his separation from service. As such, service connection cannot be established through the presumption of 38 C.F.R. § 3.307(a)(3) for chronic diseases or under Walker, supra. Turning to secondary service connection, the Board finds that Dr. E. D.’s September 2015 conclusion that the peripheral neuropathy of the upper extremities was caused by musculoskeletal nerve entrapment holds substantial probative value because it was completed by a nerve specialist and is based on the results of the Veteran’s electromyographic (EMG) nerve testing and an examination of the Veteran. The addendum medical opinion of October 2020 also holds probative value in its conclusion that the peripheral neuropathy is not aggravated beyond its natural progression by the Veteran’s diabetes mellitus because the Veteran did not have neuropathic evidence of diabetes in his upper extremities based on a record review. The examiner stated that it is possible, however, nor probable if you take the notes of Dr. E.D., the Veteran had evidence of bilateral carpal tunnel syndrome since 1996 and pain since 1990 of his upper extremity symptoms. These opinions are based on thorough reviews of the Veteran’s claims file and, in the case of the September 2015 record, an in-person examination of the Veteran. The record contains three statements from doctors indicating that the Veteran’s peripheral neuropathy is caused or aggravated by his service-connected diabetes: the July 2014 treatment note by Dr. P., the April 2016 letter from Dr. A. D., and the October 2018 letter from Dr. P. In contrast to the September 2015 and October 2020 medical opinions, these three statements do not explain how the doctors reached the conclusion that the peripheral neuropathy of the upper extremities is caused or aggravated by the Veteran’s diabetes. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). A mere conclusion without an underlying rationale is of no probative value. Miller v. West, 11 Vet. App. 345 (1998). As the July 2014, April 2016, and October 2018 statements contained no rationale or medical explanation, they are not adequate for VA purposes. There is no other medical evidence in the record indicating that the Veteran’s bilateral upper extremities was caused or aggravated by any service-connected disability. Although the Veteran contends that his peripheral neuropathy was caused by his military service and aggravated by his service-connected diabetes mellitus, type II, his statements alone are not competent evidence to determine the cause of the disease. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, the probable etiology of peripheral neuropathy, falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran has not demonstrated or alleged expertise in determining a medical nexus, and he does not offer any adequate supporting medical opinion or medical treatise evidence. Therefore, his opinion in this matter has no probative value. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim for service connection of peripheral neuropathy of the left and right upper extremities and of the neck is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). K. MARENNA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dean 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.