Citation Nr: 21012716 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-13 431 DATE: March 5, 2021 ORDER Entitlement to service connection for a right lower extremity neurological disability is denied. Entitlement to service connection for a left lower extremity neurological disability is denied. Entitlement to service connection for a right upper extremity neurological disability is denied. Entitlement to service connection for a left upper extremity neurological disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence weighs against associating any currently diagnosed bilateral upper and lower extremity neurologic disabilities with any incident of service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right lower extremity neurological disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left lower extremity neurological disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a right upper extremity neurological disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for a left upper extremity neurological disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to January 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In December 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In June 2019 and June 2020, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. Service Connection 1. Entitlement to service connection for a right lower extremity neurological disability. 2. Entitlement to service connection for a left lower extremity neurological disability. 3. Entitlement to service connection for a right upper extremity neurological disability. 4. Entitlement to service connection for a left upper extremity neurological disability Service connection may 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, 3.304. 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 may 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. §§ 1110, 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 sufficient 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 may 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 regards the 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). The Veteran is competent to provide testimony concerning factual matters of which he 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). The Veteran contends he is entitled to service connection for bilateral upper and lower extremity neuropathic disabilities due to exposure to herbicide agents in Vietnam. The Veteran is presumed to have been exposed to herbicide agents coincident with service in the Republic of Vietnam. 38 C.F.R. § 3.307. The law and regulations stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Early-onset peripheral neuropathy is a disease presumed associated with herbicide agent exposure. 38 C.F.R. § 3.309(e); 38 U.S.C. § 1116(f). However, the provisions of 38 C.F.R. § 3.307(a)(6) must be met and the rebuttable presumption provisions 38 C.F.R. § 3.307(d) must be satisfied. During the pendency of this claim, VA amended regulations regarding presumptive service connection for peripheral neuropathy associated with herbicide agent exposure. 78 Fed. Reg. 54763-54766 (September 6, 2013). Under the amendments, peripheral neuropathy no longer needs to be transient, but it must still become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicide agents to qualify for the presumption of service connection. However, even if peripheral neuropathy does not meet the definition of “early-onset” peripheral neuropathy, a Veteran can still establish service connection for peripheral neuropathy by showing it is directly related to service without the benefit of the presumptive provisions of 38 C.F.R. § 3.309(e). Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) The service medical records do not note any complaints of or treatment for any neurologic disabilities of the upper or lower extremities. The Veteran’s January 1969 separation examination notes normal upper and lower extremities and a normal neurologic examination. During a December 2018 Board hearing, the Veteran stated that the claimed neuropathic condition began around 2010. Post-service treatment records indicate that the Veteran first started complaining of peripheral neuropathy in 2007, approximately 38 years after separation from service. During VA examination in August 2020, the examiner diagnosed bilateral carpal tunnel, status-post surgery, and ulnar entrapment, status-post ulnar release surgery. The examiner also noted that the Veteran had a history of pain management since 2011 for lumbar and cervical radiculopathy and a history of ulnar release in both arms in 2007 and carpal tunnel surgery in 2007, bilaterally. The Veteran was also noted as having a history of getting injections in the neck and lower back from 2011 to 2012. After review of the claims file and in-person examination, the August 2020 examiner, a nurse practitioner, opined that the claimed bilateral upper and lower extremity 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. The examiner explained that, after extensive review of the Veteran’s medical record, the Veteran was diagnosed with radicular symptoms in the right arm and legs and followed extensively with a non-VA provider since about 2011. The Veteran was given both cervical and lumbar injections for the pain on multiple occasions and was also given Lyrica for the pain. The Lyrica was switch to gabapentin due to insurance coverage. At some point, it appeared that a primary care provider and the Veteran began to call the problem “neuropathy,” but there was no medical evidence to support that diagnosis versus radiculopathy. The Veteran also had a history of carpal tunnel with surgery and ulnar entrapment in the bilateral elbows with bilateral surgery to resolve the ulnar nerve entrapment in 2007. Bilateral carpal tunnel surgery was completed in 2007. The Veteran did not have neuropathy during the first year after separation from service in Vietnam, and there was no diagnosis of diagnosis of diabetes. There were extensive records documenting cervical and lumbar radiculopathy, and ulnar and carpal tunnel, all of which would explain the neuropathy. Missing from records were any EMG results which would help further explain in detail the origin of the neuropathy. Lyrica and Gabapentin were prescribed for radicular symptoms and not neuropathy related to either prediabetes or herbicide agent exposure. In support of the claim, the Veteran testified before the undersigned Veterans Law Judge at a December 2018 hearing. During that hearing, the Veteran stated what he believed to be the cause of his claimed disabilities and the impact they have had on his life. Early-onset peripheral neuropathy must have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active service for the presumption to apply. 38 C.F.R. § 3.307 (a)(6)(ii). In this case, the evidence of record does not show that any peripheral neuropathy was manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was presumed exposed to herbicide agents during service. Therefore, service connection cannot be established for any diagnosed bilateral upper or lower extremity neuropathic disability on a presumptive basis as secondary to herbicide agent exposure. The Board has considered whether service connection for a bilateral upper or lower extremity neuropathic disability could be warranted on a direct basis. However, none of the Veteran’s medical treatment providers have given any indication in the written record that any peripheral neuropathy could be related to active service or any incident of service, to include presumed herbicide agent exposure. The only evidence which provides any connection between the claimed bilateral upper and lower extremity neuropathy and service comes from the Veteran himself. It is to be noted that the Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran’s lay statements. Laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the specific issues in this case, whether the Veteran’s bilateral upper and lower extremity peripheral neuropathy was caused by active service, exposure to herbicide agents, or is otherwise related to service, those issues fall outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a layperson, it is not shown that the Veteran possesses the medical expertise to provide medical or etiology opinions, and no competent positive etiology opinions are of record. The August 2020 VA examiner opined that it was less likely than not that claimed bilateral upper and lower extremity peripheral neuropathy was related to active service. The Board finds the August 2020 VA examiner’s opinion to be more probative than the Veteran’s assertions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The opinion of the August 2020 VA examiner is highly probative because it was supported by detailed rationale and provided by a trained medical professional, a nurse practitioner. The VA examiner specifically identified and discussed the Veteran’s contentions and theory concerning service and the disability. Accordingly, the August 2020 VA opinion is found to carry significant weight. 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). The Veteran has not submitted any competent evidence that supports a finding that any peripheral neuropathy of an extremity is related to service. To the extent the Veteran asserts that his upper and lower extremity peripheral neuropathy is secondary to diabetes mellitus or back or neck disabilities, the Veteran is not currently service-connected for diabetes mellitus or any disability of the back or neck. Thus, the Veteran is not entitled to service connection based on those theories of entitlement. Secondary service connection cannot be established where the claimed primary disability is not service-connected. Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. No causal connection between the Veteran’s service, or any presumed exposure to herbicide agents, and bilateral upper or lower extremity peripheral neuropathy is demonstrated by the competent evidence of record. The Board is sympathetic to the Veteran in that it is clear he sincerely believes peripheral neuropathy was caused by herbicide agent exposure during service in Vietnam. However, the evidence of record does not support that contention. The Board is appreciative of the Veteran’s faithful and honorable service to our country. However, because the preponderance of the evidence is against the claims, the claims must be denied. As the preponderance of the evidence is against the claim of entitlement to service connection for a bilateral upper and lower extremity neurologic condition, to include as due to herbicide agent exposure, the claims must be denied. 38 U.S.C. § 5107(b); 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.