Citation Nr: 21021115 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 16-50 357 DATE: April 9, 2021 ORDER Entitlement to service connection for peripheral neuropathy, left upper extremity, to include as secondary to service-connected disability, is denied. Entitlement to service connection for peripheral neuropathy, right upper 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 peripheral neuropathy 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 Veteran’s left upper extremity peripheral neuropathy is not caused or aggravated by a service-connected disability. 3. The preponderance of evidence shows that the Veteran’s right upper extremity peripheral neuropathy 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 Veteran’s right upper extremity peripheral neuropathy is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for left upper extremity peripheral neuropathy 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 peripheral neuropathy 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 from July 1977 to January 1982, and from May 1982 to November 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was originally certified to the Board with three additional issues: entitlement to service connection for an acquired psychiatric disorder, and entitlement to service connection for left lower extremity and right lower extremity peripheral neuropathy. However, in a July 2020 rating decision, the RO granted entitlement to service connection for an acquired psychiatric disorder, diagnosed and rated as depressive disorder, and left lower extremity and right lower extremity peripheral neuropathy. As such, the issues are no longer in appellate status before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The Board remanded the issues on appeal for additional development in September 2020. 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). 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 Peripheral Neuropathy of the Right Upper and Left Upper Extremities 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 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, 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 organic diseases of the nervous system, 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 peripheral neuropathy 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). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis The Veteran originally claimed entitlement to service connection for bilateral carpal tunnel syndrome in July 2011, saying that he felt tingling and numbness in his fingers and hands. The RO later recharacterized the claim as one for peripheral neuropathy of the bilateral upper extremities. The claim for each upper extremity’s peripheral neuropathy was denied without a VA examination because the Veteran’s service treatment records were silent for any complaints, treatment, or diagnosis relating to any upper extremity peripheral neuropathy, to include the October 1997 separation examination. The first VA examination specifically for the Veteran’s upper extremity peripheral neuropathy occurred in August 2016. The examiner noted the Veteran had reported a history of intermittent numbness and tingling of fingers in both hands beginning in 2004. The Veteran noted that overuse of the hands exacerbated the problem and could be relieved by shaking his hands and putting ice on them. The Veteran also reported a periodic tendency to drop things that were in his hands’ grasp, also from 2004 forward. The examiner noted the Veteran had no history of any peripheral vascular disease. The examiner records mild paresthesias and/or dysesthesias and numbness in each upper extremity, and muscle strength was five on a scale of five. Sensory exam results for all upper extremity locations was considered normal. This examiner referenced an electromyogram (EMG) study from September 2002 that indicated normal results on both upper extremities, though that examiner indicated that he suspected carpal tunnel syndrome, even though the EMG readings were in a normal range. This August 2016 examiner provided a negative opinion for service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran’s bilateral carpal tunnel syndrome was related to his service. The examiner noted the Veteran’s right shoulder acromioclavicular (AC) joint, on appeal at that time and since service-connected, was not related to the Veteran’s hands’ tingling and numbness, though the Veteran had expressed an opinion that the right shoulder was responsible for the tingling and numbness. The examiner’s rationale for the negative opinion was based on the onset of symptoms only from 2004, when the Veteran had retired from active service in 1997. The Veteran received a VA peripheral nerves examination in May 2019, uploaded to the claims file in June 2019, for all four extremities. The examiner diagnosed bilateral carpal tunnel syndrome and peripheral neuropathy of the upper extremities, with origination dates of September 2002. Mild paresthesias and/or dysesthesias and numbness in each upper extremity were noted, and muscle strength was five on a scale of five. Upper extremity sensory examination indicated decreased sensation for light touch in all upper extremity areas. The examiner noted that the nerve groups for the upper extremities were considered normal. This examiner did comment that the Veteran’s untreated vitamin B12 deficiency had caused the Veteran’s peripheral neuropathies, without further explanation. This examiner provided a negative opinion for service connection for both direct and secondary service connection. Regarding direct service connection, the examiner opined that the claimed 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’s rationale was that the records indicate a vitamin B12 deficiency which he believes is the cause of the numbness and tingling in the Veteran’s upper extremities. He also considered the Veteran’s symptoms, along with previous EMG testing, to indicate the Veteran has bilateral carpal tunnel syndrome, both of which occurred after military service and are therefore not related to military service. This May 2019 examiner also indicated a negative opinion for secondary service connection, saying the claimed condition is less likely than not, less than 50 percent probability, proximately due to or the result of the Veteran’s service connected condition, referring to the Veteran’s service-connected lumbar back. This examiner noted the Veteran’s degenerative disc disease of the lumbar back with spinal stenosis, and that the condition can play a factor in numbness and tingling in the lower extremities. However, the examiner pointed out, it would not affect claimed tingling and numbness in the upper extremities. In August 2019, the Veteran’s representative provided a statement requesting VA also address the possibility of secondary service connection as due to the Veteran’s now service-connected depressive disorder, asserting that the Veteran’s alcohol use led to the Veteran’s depression and could also cause tingling and numbness in the Veteran’s upper extremities. VA provided an addendum opinion in January 2021 to ensure that all raised possibilities of service connection, direct and secondary, have been addressed for the Veteran’s claim for his bilateral upper extremity peripheral neuropathy. This VA examiner provided a negative opinion for direct service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran’s diagnosed numbness and tingling was related to service. The examiner’s rationale was that the service treatment records did not reflect any complaints or diagnoses of numbness and tingling in the upper extremities. Those service records contain multiple instances of lower extremity complaints of numbness during active service, but there are no complaints or diagnoses of upper extremity symptoms of possible peripheral neuropathy. More recent VA examiners have attributed the Veteran’s upper extremity symptoms to either or a combination of carpal tunnel syndrome and/or a vitamin B12 deficiency, neither of which existed in active service, and the earliest indications of which occurred in 2002, five years after active service. Next, this January 2021 examiner also indicated a negative opinion for secondary service connection, saying the claimed condition is less likely than not, less than 50 percent probability, proximately due to or the result of the Veteran’s service connected condition, referring to the Veteran’s service-connected lumbar back. This examiner noted the Veteran’s degenerative disc disease of the lumbar back with spinal stenosis, and that the condition can play a factor in numbness and tingling in the lower extremities. However, the examiner pointed out, it would not affect claimed tingling and numbness in the upper extremities. Next, this examiner also indicated another negative opinion for secondary service connection, saying the claimed condition is less likely than not, less than 50 percent probability, proximately due to or the result of the Veteran’s service connected condition, referring to the Veteran’s service-connected depressive disorder. The examiner’s rationale was that the physical symptoms of tingling and numbness have related by a neurologist to pertain to the Veteran’s carpal tunnel syndrome, but that there is no objective evidence by any examiner or medical treatment provider that the upper extremity numbness and tingling are related to any mental illness, to include the medications taken by the Veteran over time. The examiner pointed out the physical symptoms were deemed to have begun about 2002, well before any diagnosis or treatment of any mental health disorder. The examiner also provided a negative opinion for secondary service connection regarding the service-connected right shoulder. This examiner stated the claimed upper extremity peripheral neuropathy is less likely than not, less than 50 percent probability, proximately due to or the result of the Veteran’s service-connected condition, referring to the right shoulder AC joint. The examiner’s rationale for the negative opinion was based on the onset of symptoms only from 2002, when the Veteran had retired from active service in 1997. Additionally, the examiner pointed out that the shoulder injury is only the right shoulder and is not a bilateral condition, whereas the claimed upper extremity neuropathy has similar symptoms in both arms and hands. 1. Entitlement to service connection for peripheral neuropathy, left upper extremity, to include as secondary to service-connected disability 2. Entitlement to service connection for peripheral neuropathy, right upper extremity, to include as secondary to service-connected disability The Board finds the May 2016, May/June 2019, and January 2021 VA examinations and opinions to be of great probative value in their combination. 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 presumptive 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, both direct and secondary, for his bilateral upper extremity 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 upper extremity peripheral neuropathy 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 upper extremity peripheral neuropathy 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 peripheral neuropathy 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 upper extremity peripheral neuropathy symptoms or related complaint, and his first complaint does not arise until 2002 at the earliest. The Board finds the gap in time between the end of active service in 1997 until the 2002 possible occurrence of symptoms of the upper extremity peripheral neuropathies to be probative of a lack of nexus between service and the current complaints. 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. Upon review of the record, the Board concludes that entitlement to service connection for a peripheral neuropathy disability of any of the upper extremities is not warranted. The Board notes a current diagnoses of upper extremity nephropathy, 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 entrance examination, his service treatment records, and his separation examination were all silent for any upper extremity peripheral neuropathy symptoms, or related injury or incident that led to the nephropathy. The final physical of October 1997, a month prior to separation from active service, is silent for any existing upper extremity peripheral neuropathy 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 or secondary 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. Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran’s claimed upper extremity peripheral neuropathy 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 peripheral neuropathy disability of any extremity on a direct or secondary 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.