Citation Nr: 21011260 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-00 965 DATE: March 1, 2021 ORDER Entitlement to service connection for peripheral neuropathy (PN) of the upper and lower bilateral extremities is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has PN including of the upper and lower bilateral extremities at any time during or approximate to the pendency of the claim and the Veteran’s symptoms were not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the symptoms are not otherwise etiologically related to an in-service injury or disease, including herbicide agent exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for PN of the upper and lower bilateral extremities have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1969 to January 1972. This matter returns to the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Newnan, Georgia. By way of background, the RO denied service connection for bilateral hearing loss, tinnitus, and peripheral neuropathy in the June 2015 rating decision. In a separate November 2014 rating decision, the RO denied service connection for posttraumatic stress disorder (PTSD) and a temporary total disability rating. The Veteran timely appealed all of these issues in two separate Notice of Disagreements (NODs) and with the exception of left ear hearing loss, which was granted in a May 2017 rating decision, the remaining issues were ultimately appealed to the Board where the appeal streams were merged. The Board issued a November 2018 decision granting service connection for PTSD, right ear hearing loss, tinnitus, and a temporary total disability rating for PTSD. Service connection having been awarded for these claims constitutes a full grant of the service connection benefit sought; thus, these issues are no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Board remanded the service connection claim for PN for additional development. As will be discussed in more detail below, substantial compliance with the November 2018 remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding when a remand is issued, the Veteran is entitled, as a matter of law, the right to compliance with the remanded order). In October 2020, the Veteran’s representative requested ninety days from the date the Veteran’s claim was re-certified to the Board in order to submit additional evidence and/or argument in support of the Veteran’s claim. To date, additional evidence and/or argument has not been submitted. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for PN of the upper and lower bilateral extremities is denied. The Veteran contends he has peripheral neuropathy that was caused by or incurred during service including as a result of herbicide agent exposure or an in-service injury during training. The Board finds service connection is not warranted. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. If a Veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service, the Veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(e). The list of diseases associated with exposure to certain herbicide agents includes early-onset PN. 38 C.F.R. § 3.309(e). The Veteran is entitled to have been presumed exposed to herbicide agents during his verified service in Vietnam during the relevant time period under 38 C.F.R. § 3.307. See Veteran’s Military personnel record. Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system, such as PN, becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. See also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). When service connection cannot be established on a presumptive or secondary basis, the Court has held that the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (1994). The elements of direct service connection are: “(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,” also known as the nexus element. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Turning to the relevant evidence of record, upon entrance, the Veteran was clinically evaluated to be normal. See January 1969 entrance examination. In March 1969, the Veteran complained of pain in the left hip and thigh. See March 1969 service treatment records (STRs). On three other occasions in March 1969 over the course of a few days, the Veteran continued complaints of pain in the left leg and hip. Id. STRs also note a complaint of pain in the left foot and another report of ankle pain associated with kicking something the night before. See September and October 1971 STRs. Upon separation, the Veteran stated that he was in good health and was clinically evaluated as normal except for missing portions of two fingers. See January 1972 separation examination. In 2009, following worsening back and leg pain “for several years,” the Veteran underwent an electrodiagnostic consultation during which the Veteran reported experiencing low back pain for years. See December 2009 non-government treatment records. The provider indicated the Veteran has a “chronic history of injury during basic training” in the late 60s/early 70s when he developed “severe burning pain in the lateral aspect of his right thigh.” Id. The provider noted that this has stayed present over the years. Id. It was noted as a low-grade paresthesia, within the distribution of the lateral femoral cutaneous nerve according to the Veteran’s pointing at the presence of his paresthesia. Id. The provider explained that these symptoms were “remarkably different than the others that brought him” to the consultation. Id. An electromyographic examination was conducted revealing abnormal results with bilateral mild L4 radiculopathies and probably concomitant involvement of the right L3 nerve root. Id. The provider did not see any evidence of polyneuropathy or peripheral neuropathy. Id. The provider stated that the Veteran may have symptomatic lumbar stenosis and/or lumbar radiculopathy and ordered an MRI. Id. In September 2013, the Veteran stated that since being in the military, he has had some “nerve damage to his right leg.” See September 2013 VA treatment records. He said he injured himself in basic training rolling over several times after a fall. He reported numbness in the top of his right thigh. Id. The provider advised the Veteran to consult with his primary care physician following reports of peripheral neuropathy symptoms. Id. In October 2013, the Veteran reported numbness in the right thigh with a notation referencing a potentially pinched nerve. See October 2013 VA treatment records. In late 2013, the Veteran continued complaints of lower back pain. See November and December 2013 VA treatment records. A December 2013 MRI indicates right lumbar radiculopathy in comparison to a prior MRI. See December 2013 non-government treatment records. In February 2014, the Veteran complained of lower back pain as well as tingling and numbness in the right anterior thigh since an injury during basic training. See February 2014 VA treatment records. The Veteran continued to complain of chronic lower back pain and right thigh numbness in June 2014. See June 2014 VA treatment records. In August 2014, the Veteran complained of right lower back pain that “seemed to radiate” to the lower right quad. See August 2014 non-government treatment records. The provider noted a history of degenerative disc disease of the lumbar spine. Id. A lumbar spine MRI revealed multilevel disc degeneration with some improvements in comparison to the 2010 testing. See August 2014 non-government treatment records. An electrodiagnostic examination was completed in November 2014 revealing abnormal results of evidence of lumbosacral radiculopathy relatively unchanged at the L4 level and evidence of new/ongoing denervation at the L5 level on the right. See November 2014 non-government treatment records. The provider found that the Veteran’s symptoms are likely complicated by his low back discomfort. Id. In 2015, the Veteran complained of pain in the right groin, hip, and thigh to the knee that feels like a stabbing sensation with numbness and tingling. See April 2015 VA treatment records. He stated that he has chronic lower back pain and radiating pain down the legs. Id. The Veteran was noted to have “ongoing chronic right anterior thigh paresthesias/hypoesthesia. Id. In May 2015, the Veteran was directed to continue treatment for “right left nerve like pain.” See May 2015 VA treatment records. He complained of ongoing lower back pain with numbness in the right thigh. See May 2015 non-government treatment records. In July 2015, the Veteran reported ongoing numbness into the top of his right thigh. See July 2015 VA treatment records. The Veteran related his back and leg pain and nerve pain to an in-service injury sustained during training. Id. He underwent a neuromuscular reevaluation in August 2015 wherein the provider noted that he saw the Veteran in 2014 for electrodiagnostic evaluation following complaints of low back pain and leg numbness. See August 2015 VA treatment records. A provider noted that she suspected some of the Veteran’s pain was related to an underlying arthritic change in his right hip. See August 2015 non-government treatment records. He continued to experience the same complaints with worsening symptoms. Id. Imaging revealed mild degenerative changes in the lower lumbar spine. See September 2015 non-government treatment records. A spine MRI revealed mild degenerative changes at L1-L2, L2-L3, L3-L4, and L5-S1. Id. In September 2015, the Veteran also complained of right arm pain and weakness for about two weeks for which imaging was negative. Id. Review of the MRI indicated significant changes in the left L5 in comparison to the previous MRI. See October 2015 non-government treatment records. The Veteran complained of new onset right upper extremity pain during this appointment. Id. In October 2015, the Veteran complained of pain in the right arm all the way down to the hand. See October 2015 VA treatment records. In July 2016, the Veteran stated that he gets some muscle cramping and pain radiating to the legs from his back when he does heavy lifting. See July 2016 non-government treatment records. He was noted to have chronic lumbar radiculopathy with symptomatic lumbar spondylosis, bilateral lower lumbar spondylosis with pain, and right hip pain. Id. The Veteran was afforded a VA examination in July 2020 to determine the nature and etiology of any peripheral nerve condition during which the examiner determined that the Veteran does not have a peripheral nerve condition or peripheral neuropathy. See July 2020 VA examination. The Veteran stated that during service in 1969, he was running and fell. Id. He injured his right knee and was placed on bedrest for three days by the medics. Id. He had a “prickly feeling” with numbness and tingling in the right thigh. Id. He said that he continued in the military noticing that his right thigh never improved and has never stopped since separation. Id. He reported occasionally experiencing tingling in the fingertips. Id. His symptoms were noted to be mild constant pain in the right lower extremity, mild intermittent pain in the left lower extremity, mild paresthesias and/or dysesthesias in the right lower extremity, and mild numbness in the right lower extremity. Id. The examiner noted the Veteran has lumbosacral radiculopathy at level L4 with new denervation at the L5 level on the right. Id. The Veteran had all normal results for sensation testing though he complained of a sharp needle feeling in the right anterior thigh when touched with monofilament device. Id. The examiner noted that the Veteran complained of numbness and tingling in the legs, but he could still feel monofilament touch in all areas. Id. The examiner explained that the absence of a diagnosis despite symptoms was because the Veteran had a 2014 EMG study and opined that radiculopathy and arthritis are a better diagnosis. Id. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Id. The examiner reasoned that the Veteran’s in-service symptoms were acute only, there was no evidence of chronicity of care, and a PN condition was not indicated upon examination. Id. The examiner further explained that EMG studies revealed a lumbar radiculopathy which is a separate and unrelated condition to the Veteran’s claim. Id. The Veteran’s separation examination was silent for a peripheral nerve condition. Id. Therefore, the examiner concluded, any in-service injury or perceived nerve condition had likely resolved prior to separation. Id. The Board finds the July 2020 VA examination includes consideration of the Veteran’s medical history and set forth all pertinent findings, such that the Board is able to make a fully informed decision. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). When considered with the entire evidence of record, the Board finds the examination report is adequate for adjudication of the Veteran’s service connection claim because it is based upon an accurate medical history and provides explanation that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). Based on the aforementioned, the competent and credible medical evidence of record indicates the Veteran does not have a diagnosis of PN of the bilateral upper or lower extremities. In fact, at no time during the period on appeal has the Veteran had a diagnosis of PN nor was there a diagnosis during service or in the year following separation. Consequently, the presumptions regarding PN as a chronic condition or presumptive service connection for PN following herbicide agent exposure are not applicable. Service connection may still be granted on a direct basis. The Veteran’s claim fails, however, as the Veteran does not have a current diagnosis of PN and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The July 2020 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of right lower extremity constant pain, left lower extremity intermittent pain, right lower extremity paresthesias and/or dysesthesias, and right lower extremity numbness, he did not have a diagnosis of PN. In fact, the examiner considered the Veteran’s 2014 EMG study that was negative for PN as well as the Veteran’s evaluation when opining that the Veteran does not have PN. Rather, the Veteran’s symptoms were attributed to his diagnosed radiculopathy and arthritis. Further, despite consistent treatment from 2009 through 2020, VA and private treatment records do not contain a diagnosis of PN in any extremity. While a notation in the Veteran’s treatment records references PN, this was in reference to treatment for the Veteran’s reported thigh numbness and occurred prior to the 2014 EMG which was negative for PN. Thus, the Board assigns more probative value to the 2020 VA examiner’s opinion that the Veteran does not have a diagnosis of PN based upon his review of the Veteran’s treatment records, service records, and examination. The medical evidence and Veteran’s lay statements clearly demonstrate the Veteran is experiencing pain, numbness, and tingling in his lower legs and intermittent pain in at least the right arm. He competently and credibly conveyed his symptoms beginning in 2009. These symptoms, however, have been attributed to the Veteran’s diagnosed multilevel degenerative disc disease and osteoarthritis of the hip, neither of which have been service-connected. Of note, the Veteran separated from service in 1972. Treatment records following separation are silent regarding any complaints of PN symptoms or diagnosis between 1972 and 2009. In fact, 2009 was the first complaint of lower back pain and right thigh numbness which ultimately lead to a diagnosis of degenerative disc disease with radiculopathy. The Veteran’s treatment records lack any reference to or complaints of symptoms regarding the left arm. Rather, in 2015, the Veteran complained of right arm pain for the first time. Imaging was negative for any problems. Subsequent treatment records lack any complaints or treatment related to either upper extremity. Indeed, the July 2020 VA examiner indicated the Veteran had no symptoms related to the upper extremities. The Board finds this highly probative. The Veteran contends he has experienced right thigh numbness and pain since an in-service fall. He has consistently and credibly reported experiencing a fall during service in 1969. The record, however, fails to corroborate the severity of the Veteran’s fall. Of note, the Veteran has indicated he has experienced right thigh prickly feelings, numbness, and tingling since he injured his right knee during service. STRs, however, only reference complaints related to the left knee. In March 1969, the Veteran’s STRs indicate complaints of pain in the hip and left thigh. The Veteran was assessed with muscle strain at the time and prescribed bedrest. Subsequent treatment records lack any reference to complaints, diagnosis, or treatment related to the left or right knee or thigh. Indeed, at separation, the Veteran was clinically evaluated as normal regarding the lower extremities. STRs also mention a single L-5 strain and pain in the left foot and above the ankle following kicking something. Subsequent records, however, lack any complaints related to L-5 strain or pain in the feet nor were complaints noted on the Veteran’s separation examination. To this point, the Board finds highly probative the July 2020 VA examiner’s opinion that the Veteran’s in-service incidents or injuries were acute only and resolved. While the Veteran believes his lower extremity symptoms amount to PN and that is related to service, he is not competent to provide a diagnosis or nexus opinion in this case. These issues are medically complex, requiring specialized education and knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence of record. Further the Board finds highly probative the VA examiner’s opinion that the Veteran’s in-service incidents or injuries were acute and resolved as evidenced by the lack of continuity of care. Although a lack of contemporaneous medical evidence does not automatically constitute substantive negative evidence, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). The Board finds more probative the medical evidence of record documenting complaints of extremity symptoms beginning in 2009 with no complaints since separation in 1972. The Board acknowledges the 2009 treatment records noting that the Veteran’s complaints of burning pain in the lateral aspect of his right thigh has “stayed present over the years,” but finds when considering the entire medical evidence of record, the 2020 VA examiner’s opinion that the Veteran’s in-service symptoms were acute and resolved to be more probative. Indeed, the Board notes the Veteran’s 2009 complaints of symptoms lead to his diagnosis of degenerative disc disease, radiculopathy, and osteoarthritis of the hip. While the Veteran is competent to report experiencing symptoms, the Board assigns more probative value to the medical evidence of record especially considering the Veteran’s normal separation examination, decades between separation and the first report of symptoms, and the multiple references to radiculopathy related to his nonservice-connected lumbar degenerative disc disease without a diagnosis of PN. Based on the aforementioned, the preponderance of the evidence is against an award of service connection for PN. As such, the benefit-of-the-doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, 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.