Citation Nr: 21010937 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 14-04 827 DATE: February 26, 2021 ORDER Service connection for a stomach condition is denied. Service connection for asthma is denied. Service connection for right upper extremity peripheral neuropathy is denied. Service connection for left upper extremity peripheral neuropathy is denied. Service connection for right lower extremity peripheral neuropathy is denied. Service connection for left lower extremity peripheral neuropathy is denied. REMANDED Service connection for a respiratory disorder, other than asthma, is remanded. Service connection for an acquired psychiatric disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s claimed stomach disability began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran’s asthma began during active service or is otherwise related to an in-service injury or disease. 3. The Veteran’s bilateral upper and lower extremity peripheral neuropathies are not secondary to service-connected heart disease, did not begin during service, and are not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a stomach disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for asthma are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for bilateral upper and lower extremity peripheral neuropathies due to service or heart disease are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1962 to May 1965. A Board hearing was held in October 2018. A transcript is of record. The Board remanded the Veteran’s claims in March 2019 for additional development. In November 2020, following the issuance of a supplemental statement of the case, the Veteran submitted an additional VA Form 9 for the current appeal. In it, the Veteran indicated he wished to have a second Board hearing. Because a Board hearing was already held, the Board asked the Veteran to clarify his request in a January 2021 letter. The Veteran did not respond, and the Board will assume the Veteran did not wish to testify at a second Board hearing. 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). 1. Stomach Condition The Veteran contends his current stomach conditions began in service and continue to the present. See October 2018 Hearing Transcript, at 41-44. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of gastric ulcer, gastritis, peptic ulcer, and gastroesophageal reflux disease (GERD), and his service treatment records confirm he was treated for acute gastritis July 1963, the preponderance of the evidence weighs against finding that the Veteran’s current diagnoses began during service or are otherwise related to an in-service injury, event, or disease. The November 2020 VA examiner opined that the Veteran’s current diagnoses are not at least as likely as not related to his in-service treatment for gastritis. During the examination, the Veteran reported his symptoms began in service and had continued and worsened since that time. But the examiner explained that while the Veteran was treated for acute gastritis in service, his separation examination was silent for gastric symptoms, and the complaints of his current symptoms did not occur until 30 years after his service. The examiner therefore determined that there was not enough evidence to support a finding that the diagnosis of gastritis in service caused his current disorders. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA and private treatment records show the Veteran was not diagnosed with gastritis, GERD, gastric ulcer, or peptic ulcer until decades after his separation from service. See September 2002 Private Treatment Records; July 2003 VA Treatment Records; February 2005 Private Treatment Records; February 2006 VA Treatment Records. While the Veteran is competent to report having experienced stomach problems since service, he has not demonstrated the competence necessary to provide a diagnosis, determine that these symptoms were manifestations of any of his current conditions, or provide a nexus opinion connecting his current diagnoses and his in-service treatment. The issue is medically complex, as it requires knowledge of the digestive system and the interpretation of complicated diagnostic medical testing and the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the November 2020 VA examiner’s opinion. Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for a stomach disability and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. 2. Asthma The Veteran contends his asthma began in service and continue to the present. See October 2018 Hearing Transcript, at 4-6. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of asthma, and his service treatment records confirm he was treated for an upper respiratory infection in December 1964, the preponderance of the evidence weighs against finding that the Veteran’s asthma began during service or is otherwise related to an in-service injury, event, or disease. The November 2020 VA examiner opined that the Veteran’s asthma is not at least as likely as not related to his in-service treatment for an upper respiratory infection. The examiner explained while the Veteran was treated for once for an upper respiratory infection in service and reported he had experienced symptoms since, he was not diagnosed with asthma until 1998, 30 years after his service. The examiner therefore determined, given the span of time between the treatment for upper respiratory infection and the diagnosis of asthma, there was not enough evidence to support a nexus between the two. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA and private treatment records show the Veteran was not diagnosed with asthma until decades after his separation from service. See May 1998 Private Treatment Records. While the Veteran is competent to report having experienced breathing problems since service, he has not demonstrated the competence necessary to provide a diagnosis, determine that his symptoms were manifestations of asthma, or provide a nexus opinion connecting his current diagnosis and his in-service treatment. The issue is medically complex, as it requires knowledge of the respiratory system and the interpretation of complicated diagnostic medical testing and the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the November 2020 VA examiner’s opinion. Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for asthma and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. 3. Bilateral Upper and Lower Extremity Peripheral Neuropathies The Veteran contends his bilateral upper and lower extremity peripheral neuropathies are secondary to his service-connected heart disease. See October 2018 Hearing Transcript, at 33-35. Alternatively, he asserts that the conditions began while he was in service. Id. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Board concludes that, while the Veteran has bilateral upper and lower extremity neuropathies, the preponderance of the evidence is against finding that the conditions are proximately due to, the result of, or aggravated beyond their natural progression by his service-connected heart disease. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The November 2020 VA examiner opined that the Veteran’s peripheral neuropathies were less likely than not caused or aggravated by his service-connected heart disease. The examiner, citing medical literature, explained that peripheral neuropathies encompass disorders of peripheral nerve cells and fibers which manifest secondary to a wide range of pathologies, but heart disease was not associated as a cause for the development of peripheral neuropathies. The Board notes that the VA examiner did not address the Veteran’s assertion that his symptoms began in, and had continued since, service. But, as discussed below, the Veteran’s assertion that his symptoms began in service is not credible and no additional medical opinion is necessary. The Veteran believes his peripheral neuropathies are proximately due to or the result of his service-connected heart disease. But he has not been shown to have the competence necessary to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the relationship between the cardiovascular system and the nerves of the extremities. Therefore, it is outside the competence of the Veteran because the record does not show that he has the skills or medical training 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). Consequently, the Board gives more probative weight to the November 2020 VA examiner’s opinion. Next, considering the Veteran’s contention that he began experiencing the symptoms of peripheral neuropathy while he was still in service, the Board finds that the Veteran’s assertions are not credible because they are internally inconsistent and are inconsistent with the medical evidence of record. The Veteran’s service treatment records are silent for complaint or treatment for any neurological symptoms in his extremities. Likewise, the medical evidence is silent for any complaints of neurological pain until April 2006, when he was diagnosed with radiculopathies – not peripheral neuropathies – associated with a lumbar spine condition. See April 2006 Private Treatment Record. In an April 2015 private treatment records, Dr. A.W. opined that the Veteran did not have a diagnosis of peripheral neuropathy at that time. Finally, during the November 2020 VA examination, the Veteran stated that his symptoms started only 10 to 12 years prior, decades after his active duty service. As such, the Board finds the Veteran’s statements that his symptoms began in service lack credibility and affords them no probative value. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff’d per curiam, 78 F.3d. 604 (Fed. Cir. 1996); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral upper and lower extremity peripheral neuropathies and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. REASONS FOR REMAND 1. Service Connection for a Respiratory Disorder Other Than Asthma The November 2020 VA examiner diagnosed lung nodules and calcified granuloma but did not provide an etiological opinion for those diagnoses. There has therefore not been substantial compliance with the Board’s previous remand directive and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Service Connection for an Acquired Psychiatric Disorder The Veteran has not been afforded a VA examination, and therefore there has not been substantial compliance with the Board’s previous remand directive. Another remand is required. Stegall 11 Vet. App. 268. 3. TDIU Because a decision on the remanded issues could significantly impact a decision on entitlement to TDIU, the issues are inextricably intertwined, and a remand of the claim is required. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician regarding whether lung nodules or calcified granuloma are at least as likely as not related to the Veteran’s active duty service, including, but not limited to, his treatment for an upper respiratory infection in December 1964. 2. Schedule the Veteran for a VA examination for acquired psychiatric conditions. The examiner must review the claims file and address the documented diagnoses of depression, anxiety, insomnia, and PTSD. The examiner is asked to provide a response to the following: Is any acquired psychiatric disorder at least as likely as not related to the Veteran’s service? Is any acquired psychiatric disorder at least as likely as not proximately due to any already service-connected disability? Is any acquired psychiatric disorder at least as likely as not aggravated, i.e., worsened beyond its natural progression, by any already service-connected disability? (Continued on the next page)   3. Then readjudicate the claim. If any benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mine 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.