Citation Nr: 21025286 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 12-16 608A DATE: April 27, 2021 ORDER Entitlement to service connection for a stomach condition is denied. Entitlement to service connection for a peripheral nerve condition of the left upper extremity is denied. Entitlement to service connection for a peripheral nerve condition of the right upper extremity is denied. Entitlement to service connection for a peripheral nerve condition of the left lower extremity is denied. Entitlement to service connection for a peripheral nerve condition of the right lower extremity is denied. FINDINGS OF FACT 1. The Veteran’s stomach condition is not proximately due to or the result of his service-connected posttraumatic stress disorder (PTSD). 2. The Veteran’s bilateral upper and lower peripheral nerve conditions are due to non-service-connected cervical and lumbar spine conditions. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a stomach condition have not been met. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for entitlement to service connection for bilateral upper and lower peripheral nerve conditions have not been met. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to May 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of June 2008 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The record reflects that the Veteran initially requested a hearing in his appeal to the Board, but that he later withdrew this request in December 2015. See June 2012 VA Form 9; cf. December 2015 VA Form 21-4138. Accordingly, no hearing before the undersigned Veterans Law Judge (VLJ) was conducted. The Board subsequently denied these claims in a decision of February 2018, which the Veteran appealed to the Court of Appeals for Veterans Claims (CAVC). The CAVC adopted a joint motion for remand (JMR) and the Board subsequently remanded this case for further development. See February 2019 CAVC Decision; see also October 2019 Board Decision. As will be discussed below, the Board’s remand directives included conducting new VA examinations. See id. at 7-9. In addition, the Board directed the RO to obtain additional medical records consistent with the terms of the JMR. See id. at 7 (specifying updated VA records from 2012 onward, prior VA records from 1980 to 1999, and available private treatment records); see also February 2019 CAVC Decision at 4. The RO subsequently determined that the identified 1980-1999 records are no longer available. See December 2020 VA Form 10-7131; see also November 2019 Development Letter. The Board therefore finds that the RO has substantially complied with its remand directives and will proceed to adjudicate the Veteran’s claims on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). Service Connection Generally, service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Disabilities which are “proximately due to or the result of a service-connected disease or injury” are also service connected. 38 C.F.R. § 3.310(a). “When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.” Id. Certain conditions, including peripheral neuropathy, may also be service-connected on a presumptive basis when a veteran has been exposed to certain herbicide agents. See 38 C.F.R. § 3.307(a) (providing basis for presumption); see also 38 C.F.R. § 3.309(e) (listing qualifying conditions). To qualify for service connection on this basis, peripheral neuropathy must manifest to a compensable degree within one year of a veteran’s last exposure to herbicide agents. See 38 C.F.R. § 3.307(a)(6)(ii). These regulations further provide a second presumption: that veterans who served within certain geographic regions or who carried out particular duties were in fact exposed to such herbicide agents. See 38 C.F.R. § 3.307(a)(6)(iii) (providing in pertinent part that exposure is presumed where a veteran served “in the Republic of Vietnam… [between] January 9, 1962 [and] May 7, 1975”). The Veteran’s military personnel records reflect service in Vietnam between April 1968 and May 1969. See March 2008 Military Personnel Records at 4; see also August 1970 Discharge Certificate (reflecting receipt of Vietnam Service Medal). The Board therefore presumes that the Veteran was exposed to herbicide agents during his active-duty service and has found no evidence in the record to rebut this presumption. 1. Entitlement to service connection for a stomach condition. The JMR found that the Board had not addressed whether service connection for this condition might be warranted as secondary to his service-connected posttraumatic stress disorder (PTSD). See February 2019 CAVC Decision at 2-3; see also June 2012 VA Form 9 (providing the Veteran’s assertion that “I believe that the combination of the food that I was served, along with the anxiety of being in combat in Vietnam, caused my irritable stomach condition”) (emphasis added). Accordingly, the Veteran underwent an additional VA examination on this issue following the Board’s October 2019 remand. See January 2020 VA Examination Report (Stomach); see also January 2020 VA Examination Report (Esophageal). As an initial matter, the Board notes that the VA examiner diagnosed current gastroesophageal reflux disease (GERD) and a hiatal hernia. See id. at 1. The Board therefore finds that the first Shedden factor has been met. The record reflects that the Veteran is service-connected for PTSD. See June 2012 Rating Codesheet at 1. The Board therefore finds that the second Shedden factor has been met as well. However, the January 2020 VA examiner opined that it was less likely than not that the Veteran’s current conditions were due to or aggravated by his PTSD. See January 2020 Medical Opinion at 4-5. In reaching this conclusion, the examiner noted that: The Veteran was diagnosed with GERD by [esophagogastroduodenoscopy] by his Gastroenterologist in 2008 after confirmation testing noting hiatal hernia… The [opinion] by [the] Veteran indicates it is likely the current GI/Stomach/GERD condition is related to the [service-connected] PTSD because it occurs at times during stressful moments; [however] this is subjective without etiological or empirical evidence and merely an assumption given absence of causation [of] disease. Studies suggest [veterans] with [PTSD] may have a higher incidence of physical condition[s] such as [gastrointestinal] irritation and gastric distress, and as PTSD symptom severity rises, so does Gastrointestinal development risk. However, peer-reviewed literature does not support causation between the PTSD and a vomiting condition… the Veteran is not competent to attribute those symptoms to the current GI condition without contemporaneous medical evaluation at the time of those symptoms, which is not evidenced. The [Veteran’s] condition is controlled with standard dietary and oral medication treatment. There has been no surgery or other procedures or medication for this condition. This would not suggest the condition has been aggravated beyond [its] normal progression, including by his [service-connected] conditions. The majority of [the] evidence indicates that it is unlikely the current GI condition… is related to or caused by military service or by the PTSD condition, and that it is unlikely the current condition has been aggravated by the [service-connected] condition. See id. at 5 (capitalization in original). As an initial matter, the Board notes that the Veteran’s competency as a lay witness is to be addressed by the Board, not the VA examiner. “Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board[.]” Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Id. A lay witness is generally competent to report symptoms capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board finds that such symptoms include gastrointestinal distress, as well as the occurrence of such symptoms during periods of psychological distress. See May 2008 VA Examination Report at 1 (noting Veteran’s report of “constipation/diarrhea” among symptoms of psychiatric condition); see also November 2011 VA Examination Report at 2 (noting “upset stomach” among reported symptoms). However, the January 2020 examiner’s determination that available scientific studies show only a correlation between PTSD and gastrointestinal symptoms, as opposed to a causal relationship, requires specific medical expertise and is therefore beyond the competency of the Veteran or the Board. Jandreau, 492 F.3d at 1376. In the absence of competent evidence demonstrating a nexus between the Veteran’s PTSD and his stomach condition, the Board concludes that the third Shedden factor has not been met. The assignment of service connection for this condition on a secondary basis is therefore not warranted. 38 C.F.R. § 3.310. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence of record is against the Veteran’s claim. 38 U.S.C. § 5107. 2. Entitlement to service connection for bilateral upper and lower peripheral nerve conditions. The JMR also found that the Board had not addressed favorable evidence diagnosing peripheral neuropathies. See February 2019 CAVC Decision at 3-4. As discussed above, peripheral neuropathy is among the conditions which qualify for presumptive service connection. See 38 C.F.R. § 3.309(e). The Veteran also asserts that these conditions are due to his service-connected diabetes mellitus. See June 2012 VA Form 9. However, the evidence of record supports the conclusion that it is more likely than not that the Veteran’s bilateral upper and lower peripheral nerve conditions are not in fact peripheral neuropathies, but rather radiculopathies caused by his non-service-connected spine conditions. The Board notes that while the symptoms of these conditions may overlap, radiculopathies are distinguished by the pinching of nerves at the root. See “Radiculopathy Versus Neuropathy”, Johns Hopkins Medicine (accessed via https://www.hopkinsmedicine.org/health/conditions-and-diseases/radiculopathy). In reaching this conclusion, the Board notes that the Veteran underwent an additional VA examination in accordance with the Board’s prior remand directives. See January 2020 VA Examination Report (Peripheral Nerves). The January 2020 VA examiner extensively reviewed the evidence of record. See id. at 1-3. The January 2020 VA examiner specifically responded to a letter from the Veteran’s private treatment provider, in which that provider had opined: [The Veteran] has gastrointestinal problems, including chronic bouts with diarrhea, nausea, and loss of appetite. [He] is treated for Sexual problems, including Erectile Dysfunction and Impotence, which he developed secondary to the Diabetes. He requires treatment with regular testosterone injections and Erectile dysfunction medications. All of these are common problems with Autonomic Neuropathy for Diabetes. See April 2019 Correspondence (S.K.) (capitalization in original). The January 2020 VA examiner noted several inconsistencies between this opinion and the medical evidence of record, particularly magnetic resonance imaging (MRI) of the Veteran’s spine and electromyography (EMG) examining the Veteran’s peripheral nerves. See January 2020 VA Examination Report (Peripheral Nerves) at 3. Despite the fact that the Veteran’s private treatment provider ordered several of these studies himself, they are not mentioned in his correspondence, nor does he provide any explanation as to why the Veteran’s peripheral nerve symptoms are at least as likely as not attributable to diabetes mellitus as opposed to cervical and lumbar spine conditions. See id. Instead, the January 2020 VA examiner opined that these studies support the conclusion that the Veteran’s bilateral upper and lower peripheral nerve conditions are due to his non-service connected spine conditions: [The June 2015 EMG shows] chronic generalized neuropathic motor unit action potential changes of bilateral upper and lower extremities and related paraspinals with normal nerve conduction studies, [which] suggests chronic bilateral cervical and lumbosacral polyradiculopathy. No electrodiagnostic evidence of neuropathy or myopathy noted… MRI [of] lumbar spine… found findings of multilevel lumbar spondylotic changes with moderate bilateral facet [degenerative joint disease], diffuse disc bulge [a]symmetrically towards the left and compression of left L4 nerve suspected. L3-L4 also had diffuse disc bulge, with no focal disc herniation. L5-S1 noted diffuse disc bulge seen without significant thecal sac narrowing. Mild bilateral neural foramina narrowing… MRI of c-spine… found the following… Disc protrusions result in mild canal stenosis at C3-4 through C6-7, with cord contact at C5-6. Facet/uncinate hypertrophy results in moderate right neural foraminal stenosis at C3-4 and C4-5, severe right and mild left neural foraminal stenosis at C5-6, severe right and moderate left neural foraminal stenosis at C6-7, and moderate bilateral neural foraminal stenosis at C7-T1… The Veteran’s peripheral neuropathy is due to his non-[service-connected] condition of lumbar and cervical disease and stenosis. There are findings of peripheral neuropathy listed on [treatment records of November and December 2010] however this is due to spine disease and not diabetes. The Veteran’s diabetes does not aggravate his peripheral neuropathy symptoms. There is no empirical evidence of aggravation, nor any nexus related to his diabetes as confirmed by nerve testing and electromyelogram from 2015[.] See January 2020 VA Medical Opinion at 5-7 (emphasis added); see also January 2020 VA Examination Report (Peripheral Nerves) at 1 (diagnosing cervical and lumbar radiculopathies). This conclusion is also consistent with prior VA examinations and medical treatment records. See June 2015 VA Examination Report (Peripheral Nerves) at 5 (opining that “[the Veteran] does not have diabetic peripheral neuropathy of the upper… [and] lower extremities” and that EMG findings instead suggest “chronic bilateral cervical and lumbosacral polyradiculopathy”); see also id. at 2 (noting the Veteran’s inability to provide a date for onset of symptoms); see also November 2011 VA Examination Report at 12 (finding no diabetic peripheral neuropathy); see also September 2010 Medical Treatment Records at 53 (providing treatment note of June 2009 observing “[cervical] spondylosis with tingling and numbness of both hands”); see also October 2008 VA Examination Report at 3 (providing Veteran’s report of bilateral lower extremity nerve symptoms from “the 1990s”); see also id. at 38-39 (noting diagnosis of diabetes in 2003 and finding no symptoms of peripheral neuropathy attributable to diabetes). The Board observes that in a treatment note of March 2008, the Veteran asserted that he experiences “numbness to his (R) great toe” which began “before I went into service but… has been getting worse since I retired.” See June 2008 Medical Treatment Records at 9 (emphasis added). To the extent that numbness of the right toe could serve as a symptom indicative of peripheral neuropathy of the lower right extremity, this statement could support an earlier onset of such a condition, perhaps preceding the onset of the Veteran’s non-service-connected spine conditions. However, this statement is inconsistent with the Veteran’s statements to the October 2008 and June 2015 VA examiners, in which the Veteran variously stated that his peripheral nerve symptoms began in “the 1990s” or stated an inability to recall their onset. This inconsistency diminishes the Veteran’s credibility on this point. The Board also notes the submission of articles describing symptoms of diabetic neuropathy and associations between diabetes and erectile dysfunction. See April 2019 Correspondence. The Board notes that these articles are general in application and do not discuss the Veteran’s individual disability picture, nor do they provide any guidance as to distinguishing diabetic peripheral neuropathies from nerve conditions attributable to spine conditions. Accordingly, they do not satisfy the Veteran’s burden under Shedden, which is to show that it is at least as likely as not that his peripheral nerve conditions are due to his diabetes mellitus, not merely that such a connection is possible. 38 U.S.C. § 5107. As discussed above, the Board finds the opinion of the January 2020 VA examiner carries significant probative weight because her analysis addresses the Veteran’s full disability picture, including his non-service-connected spine conditions. “Relevant points that can be discussed in an examination report include, but are not limited to, why the examiner finds cited studies persuasive or unpersuasive, whether the veteran has other risk factors for developing the claimed condition, and whether the claimed condition has manifested itself in an unusual way.” Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Veteran is competent to report symptoms capable of lay observation, which include sensations of numbness and pain in the extremities, neither he nor the Board is competent to attribute them to diabetes mellitus as opposed to a spine condition because such a determination requires medical expertise. “Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board[.]” See Jandreau, 492 F.3d at 1376. While Dr. S.K. is competent to provide such analysis, his opinion does not discuss the relevance of the Veteran’s non-service-connected spine conditions and is therefore of less probative weight than that of the January 2020 VA examiner. “[Most] of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight… if it contains only data and conclusions.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As discussed above, the Veteran’s credibility as to the onset of these conditions is diminished by his inconsistent statements on this point, and the Board has not otherwise found evidence in the record supporting the inference that these conditions manifested to a compensable degree within one year of his last exposure to herbicide agents. See 38 C.F.R. § 3.307(a)(6)(ii); cf. November 1970 VA Examination Report at 4-5 (noting residuals of physical injury to middle finger of left hand but finding no neurological symptoms); see also June 1970 STR at 23 (providing May 1969 separation examination observing no neurological symptoms). The assignment of service connection for the Veteran’s bilateral upper and lower peripheral nerve conditions on a presumptive basis or as secondary to his diabetes mellitus is therefore not warranted. 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.