Citation Nr: 21021946 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-44 769 DATE: April 14, 2021 ORDER Entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy, to include as secondary to exposure to herbicide agents, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), prior to July 31, 2018, is denied. FINDINGS OF FACT 1. Peripheral neuropathy of the bilateral upper and lower extremities is not related to any event of service, to include exposure to herbicide agents, and it was not present to a compensable degree within one year of separation from service. 2. The preponderance of the competent and credible evidence of record indicates that the service-connected disabilities alone do not preclude the Veteran from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy, to include as secondary to exposure to herbicide agent, have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1131, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (a),(e). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341(a), 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to May 1971, to include service in the Republic of Vietnam. In April 2019, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. During the course of the appeal, a November 2020 rating decision established service connection for hypertension, constituting a total grant of that benefit sought on appeal. Thus, the issue of entitlement to service connection for hypertension is no longer on appeal before the Board. This case was previously remanded for further development. In light of the treatment records that have been obtained and associated with the record, the obtaining of the requested medical opinions, and the further adjudicatory actions taken by the Agency of Original Jurisdiction (AOJ), the Board finds that there has been substantial compliance with the prior remand requests. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection 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. 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 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. § 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. A disability that is proximately due to or the result of a service connected disease or injury shall be service connected. When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability, which is aggravated by a service-connected disability. In that instance, the Veteran is compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy, to include as secondary to exposure to herbicide agents The Veteran asserts that he has peripheral neuropathy of all four extremities secondary to exposure to herbicide agents on active duty in the Republic of Vietnam. Exposure to herbicide agents is presumed for Veterans who served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975. 38 C.F.R. § 3.307(a)(iii). Service connection is presumed for certain diseases if a Veteran was exposed to herbicide agents during active service if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309 (e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early onset peripheral neuropathy shall 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 herbicide agents during active service. 38 C.F.R. § 3.307(a)(6)(ii). The service personnel records show that the Veteran served in the Republic of Vietnam from January 1971 to May 1971. Therefore, exposure to herbicide agents during that service is presumed. However, the evidence does not show, and the Veteran has not claimed, that peripheral neuropathy became manifest to a degree of 10 percent or more within a year after the last date on which he was exposed to herbicide agents during active service. According to the service personnel records, the last date on which the Veteran is presumed to have been exposed to herbicide agents is May 1971, the date he concluded serving in the Republic of Vietnam. According to the treatment records, and at an April 2019 Board hearing, the Veteran stated that the Veteran’s first problems with peripheral neuropathy manifested in 2011. Thus, service connection cannot be awarded pursuant to 38 C.F.R. § 3.309(e) as the preponderance of the evidence is against a finding that peripheral neuropathy manifested within one year of the last presumed exposure to herbicide agents. The Board has also considered whether service connection for peripheral neuropathy of all four extremities could be warranted on a direct basis. However, none of the medical treatment providers have given any indication that the Veteran’s claimed peripheral neuropathy could be related to active duty service. The only evidence which provides any connection between peripheral neuropathy and service comes from the Veteran’s statements, which are not shown to have the medical competence to provide medical opinions diagnosing a disability or relating a disability to service. 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 claimed peripheral neuropathy was caused by active service, exposure to herbicides, or are 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 such opinions, and no competent nexus opinions are of record. On VA examination in November 2020, the examiner opined that the Veteran’s peripheral neuropathy was less likely than not (less than 50 percent probability) incurred in or caused by service. The examiner found no evidence of peripheral neuropathy while the Veteran was in the service or within one year after service. The examiner explained that based on the Veteran’s current symptoms of peripheral neuropathy along with a review of an MRI of the lumbar spine, it was a high probability that the Veteran’s symptoms of peripheral neuropathy were more clinically related to thoracolumbar spine abnormalities, to include lumbar spine stenosis, multilevel degenerative changes, and compression of the cauda equina. The examiner further noted that the Veteran’s peripheral neuropathy symptoms were reported in November 2013, approximately 42 years post-service. The Board finds the VA examiner’s opinion to be more probative than the lay statements of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The opinion of the VA examiner is highly probative because it was supported by detailed rationale and was provided by a trained medical professional. The VA examiner specifically identified and discussed the Veteran’s contentions and theory concerning service and his claimed residuals. Additionally, the examiner also referenced the Veteran’s contentions and addressed other possible etiologies. Accordingly, the VA examiner’s 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 reached. 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 competent evidence showing that peripheral neuropathy manifested in service, to a compensable degree within one year following service, or is related to service or any event, injury, or disease during service. The Board is sympathetic to the Veteran in that it is clear he sincerely believes he has peripheral neuropathy of all four extremities caused by herbicide agent exposure during active service. However, the evidence of record does not support that contention. Although the Board is appreciative of the Veteran’s faithful and honorable service to our country, considering the record before the Board, this claim must be denied. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). As the preponderance of the evidence is against the claim of entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy, to include as secondary to herbicide agent exposure, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), prior to July 31, 2018 Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more, or (2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a); Mittleider v. West, 11 Vet. App. 181 (1998). Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching a determination, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to age or the impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran’s service-connected disabilities prior to July 31, 2018, are PTSD, rated 30 percent; tinnitus, rated 10 percent; and bilateral hearing loss, rated 0 percent. The combined service-connected disability rating was 40 percent. Thus, the Veteran did not meet the schedular criteria for consideration of the assignment of TDIU prior to July 31, 2018. 38 C.F.R. § 4.16(a). Nevertheless, the Veteran may be entitled to a TDIU if it is established that he is unable to secure or follow substantially gainful employment as a result of the effects of the service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, the Board must determine whether the service-connected disabilities precluded the Veteran from engaging in substantially gainful employment, or work that is more than marginal, which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making a determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The Board is required to obtain the Director’s decision before the Board may award TDIU under 38 C.F.R. § 4.16(b). Wages v. McDonald, 27 Vet. App. 233. In cases of Veterans who evidence suggests are unemployable by reason of service-connected disabilities and who do not meet the threshold percentage requirements of 38 C.F.R. § 4.16(a), the case is to be submitted to VA’s Director of Compensation Service for consideration of whether entitlement to a TDIU is warranted. 38 C.F.R. § 4.16(b). In order to refer the case, there must be a determination that a particular Veteran is suggested by the evidence to be unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). That means that the Board should take into account the veteran’s specific circumstances including disabilities, education, and employment history when determining if the veteran is unable to work. At a May 2015 VA audiology examination, the examiner indicated that the Veteran’s hearing loss and tinnitus did not impact the Veteran’s ordinary conditions of daily life, including the ability to work. At a June 2015 VA psychiatric examination, the Veteran was found to have occupational and social impairment with only mild transient symptoms which decreased work efficiency and ability to perform occupational tasks only during period of significant stress, or, symptoms controlled by medication. The Veteran was married at the time of the examination for nearly 25 years, describing the marriage as good and strong. The Veteran described a good relationship with his brother and parents and enjoyed an active life with friends. The Veteran noted being in a band, with friends with whom he was very close. At the time of the examination, the Veteran had not worked since retiring a few years prior. On examination, PTSD was noted to manifest with anxiety, suspiciousness, mild memory loss, some flashbacks, and nightmares. Overall, the Veteran was noted as having mild clinical distress, little to no social anxiety, and being capable of managing his financial affairs. The Veteran was noted to be early for the appointment, well-groomed and dressed, alert, oriented, with clear and coherent speech, thoughts, and intact judgment. The VA examiner noted the Veteran was talkative. On a VA form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, completed in September 2015, the Veteran stated that PTSD and peripheral neuropathy prevented him from securing or following any substantially gainful occupation. He was last employed in 2011. He had worked as a driver for a food service company. He had completed two years of college. At a May 2016 VA psychiatric examination, the examiner diagnosed other specified trauma and stressor related disorder, qualified as PTSD. During the examination the Veteran was found to have occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal. The examiner noted that the Veteran remarked on a continuing healthy and happy marital relationship, with an active social life, and still played with a band. Further examination found symptoms of depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The Veteran was fully-oriented and described as being casually dressed. His mood was noted as being neutral and he denied suicidal and homicidal ideation. The Veteran’s insight and judgement were noted as good and grossly intact. There were no deficits noted in the Veteran’s attention or concentration and his memory was grossly intact. At an April 2019 Board hearing, the Veteran stated that he last worked in November 2011. He had worked at that job for 20 years. He stated that he had outbursts at work that prevented him from doing his job. His anxiety and depression caused him to lose concentration. After reviewing the entire record, the Board concludes that entitlement to TDIU for the period prior to July 31, 2018, is not warranted. The most probative evidence of record shows that, solely considering the service-connected disabilities, the Veteran more likely than not would be able to obtain gainful employment. The Board finds that the evidence does not show anything out of the ordinary, or not average, in the Veteran’s situation as a result of service-connected PTSD, hearing loss, and tinnitus disabilities for the period prior to July 31, 2018. While the Veteran would have trouble with concentration, significant interactions with others, and ringing in the ears, the weight of the probative evidence of record does not indicate that he was unable to perform some type of substantially gainful employment specifically as a result of service-connected disabilities, with consideration of training and experience, and without consideration of age or nonservice-connected disabilities for the period prior to July 31, 2018. Significantly, none of the VA examiners prior to July 31, 2018 opined that the service-connected disabilities alone severely impacted the Veteran’s ability to work. On the contrary, the May 2015 VA audiological examiner specifically indicated that the Veteran’s service-connected hearing loss and tinnitus did not impact the Veteran’s ability to work. While acknowledging that the Veteran has service-connected symptoms such as verbal aggression, depression, and ringing in the ears, the weight of the persuasive evidence of record does not demonstrate that the service-connected disabilities alone were of such severity as to preclude participation in all forms of substantially gainful employment for which the Veteran is qualified prior to July 31, 2018. The Board notes that as of July 31, 2018, the Veteran has been assigned a 100 percent rating for prostate cancer. As of April 24, 2019, the Veteran has been assigned a 70 percent rating for PTSD. The Board finds that the evidence does not show that PTSD, which was rated 30 percent prior to April 24, 2019, hearing loss, tinnitus, hypertension, and erectile dysfunction caused unemployability prior to April 24, 2019. Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to TDIU prior to July 31, 2018 and referral to VA’s Director of the Compensation Service is not warranted. The claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Layton, 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.