Citation Nr: 21026368 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-37 083 DATE: April 30, 2021 ORDER Service connection for lung disability, to include asthma, is denied. Service connection for peripheral neuropathy of right upper extremity is denied. Service connection for peripheral neuropathy of left upper extremity is denied. Service connection for acquired psychiatric disability, to include depressive disorder and insomnia, is denied. REMANDED Entitlement to service connection for bilateral eye disability, to include cataract and glaucoma and diabetic retinopathy, is remanded. FINDINGS OF FACT 1. The Veteran served in the 12-nautical-mile territorial sea of the Republic of Vietnam during the Vietnam era; hence, he was presumed to have been exposed to Agent Orange in active service. 2. The Veteran’s asthma was not manifest on active duty service and is not otherwise shown to be related to service, to include exposure to herbicides and asbestos; and the Veteran has not been diagnosed with any other lung disability, to include asbestosis. 3. The Veteran neither has been diagnosed with, nor has exhibited signs or symptoms of, peripheral neuropathy of right upper extremity at any time during the appeal period. 4. The Veteran neither has been diagnosed with, nor has exhibited signs or symptoms of, peripheral neuropathy of left upper extremity at any time during the appeal period. 5. The Veteran’s insomnia was not manifest during active service or within the first year after service, and is not attributable to service; and the Veteran has not been diagnosed with any other psychiatric disability, to include depressive disorder. CONCLUSIONS OF LAW 1. A lung disability, to include asthma, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Peripheral neuropathy of right upper extremity was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. Peripheral neuropathy of left upper extremity was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. An acquired psychiatric disability, to include depressive disorder and insomnia, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1964 to August 1968. He timely appealed these matters from a July 2015 rating decision. In December 2019, the Veteran and his wife testified during a video conference hearing before the undersigned. In February 2020, the Board remanded the matters for further development. Here, substantial compliance with remand orders is demonstrated for claims decided below. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all available records identified by the Veteran as relating to his claims decided below were obtained, to the extent possible. The record does not otherwise indicate any existing pertinent evidence that has not been obtained. Examination reports and opinions are thorough and adequate for the Board to render the following decisions in the Veteran’s appeal. 38 U.S.C. § 5103A(a)(2). Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some chronic diseases, such as psychoses, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The applicable presumptive period is one year from separation. For Veterans exposed to tactical herbicides, service connection may be presumed for certain listed diseases, including peripheral neuropathy. Exposure is presumed for those who served in Vietnam from January 1962 to May 1975. 38 C.F.R. §§ 3.307, 3.309. This includes Veterans who served in the 12-nautical-mile territorial sea of the Republic of Vietnam. 38 U.S.C. § 1116A. VA regulations provide that, if a Veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disorders: asthma is not listed among the diseases presumed to be associated with Agent Orange exposure. 38 C.F.R. § 3.309(e). That notwithstanding, the Veteran may still establish service connection on a direct basis by showing that the claimed disability is at least as likely as not causally linked to herbicide exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). With specific regard to Navy Reserve service, service connection may be granted for disability resulting from either disease or injury incurred in, or aggravated while performing, active duty training (ACDUTRA). With respect to inactive duty training during Navy Reserve service, service connection may only be granted for injury so incurred or aggravated, or for an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C. §§ 101 (24), 106, 1110, 1131; 38 C.F.R. § 3.6. In this case, the Veteran was presumed sound at service entry. Clinical evaluation at entry in August 1964 was normal, and no disability was recorded. Nor is there medical evidence of any disability prior to active service. The Board is within its province to make a determination as to whether the evidence supports a finding of service incurrence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Lung Disability The Veteran seeks service connection for lung disability, and has asserted that the claimed disability is due to exposure to asbestos aboard ship in active service. Specifically, he testified that the WWII carrier did not have air conditioning, and that a blower system went through one or two vents into each compartment. Because of the extreme heat, sailors cut holes into the insulation to redirect air towards them. The Veteran awoke one morning, and his dark blanket was covered in white specks. He later reported breathing trouble going up stairs. The Veteran is competent to describe his symptoms and exposure to an unknown material, likely to contain asbestos. Service treatment records do not show any lung disability or breathing problems or complaints of asthma. Nor is there evidence of trauma or injury in active service or in Navy Reverse service involving the Veteran’s respiratory system. There is no evidence of treatment in active service for any shortness of breath or wheezing. Clinical evaluation of lungs and chest were normal, and chest X-rays were within normal limits at separation examination from active service in July 1968. Here, the evidence does not show that any lung disability or asthma had its onset in active service. Post-service records include many years of chest X-rays, noting no acute lung infiltrates in 2006; unremarkable lungs in 2007; no acute lung infiltrates in 2008 and in 2009; and clear lungs, with no pleural effusion in 2015. Physical examinations during such years revealed the Veteran’s lungs as clear to auscultation and percussion, or without rales or wheezes. VA records, dated in April 2019, show that the Veteran was followed by his primary care physician for “asbestosis.” In December 2019, the Veteran testified that he did not go to sick bay for any type of breathing problem while aboard ship in active service. He first noticed a few years ago that he had trouble just breathing. He went for a check-up and was told he did not have mesothelioma yet, but that he could later in life. His physician also told him that he was “close to having chronic obstructive pulmonary disease.” While the Veteran is competent to report what he was told by a physician, the Board finds the physician’s statement that the Veteran could have mesothelioma later in life to be somewhat speculative in nature, and based solely on possibility. Pulmonary function testing in October 2020 revealed possible mild restriction. Pursuant to the Board’s remand, the Veteran underwent a VA contract examination in September 2020. The examiner noted that the Veteran’s exposure to herbicides in active service had been conceded. Chest X-rays from September 2018 revealed no acute lung infiltrates. The only respiratory or pulmonary condition diagnosed by the examiner was asthma. No interstitial lung disease, to include asbestosis, was found. The Veteran reported having symptoms of lung disability around the late 1990’s, and that his symptoms have stayed about the same. He reported no current treatment and reported experiencing shortness of breath and becoming easily winded. Following examination in September 2020, the examiner opined that the Veteran’s asthma was less likely than not incurred in or caused by active service, to include asbestos exposure, by checking the corresponding box on the form used. She reasoned that results of cited 2010 studies do not support a causal relationship between asbestos exposure alone and airway obstruction. However, in the narrative immediately following the checked box, the examiner also offered a positive opinion, albeit with multiple typographical errors. A February 2021 addendum opinion was sought to clarify the examiner’s statements. The examiner clarified that neither the Veteran’s entry examination nor his separation examination noted asthma or pulmonary condition. The remaining service treatment records noted neither asthma nor pulmonary condition. The examiner clarified that there was insufficient evidence during active service to warrant direct service connection for asthma or pulmonary condition. In essence, there was no causal relationship with the Veteran’s current asthma and specific exposures either to herbicides or to asbestos. She repeated her citation of 2010 studies. While the Veteran is competent to describe symptoms, the evidence does not reveal respiratory or pulmonary insufficiency in active service; onset in active service has not been demonstrated. Moreover, the concept of continuity does not apply because asthma is not listed as a chronic disease under 38 C.F.R. § 3.309. Walker, 708 F.3d at 1338-39; further, there is a well-reasoned (and now clear) medical opinion finding no causal link between in-service exposures and asthma. Nor does the evidence of record reveal a diagnosis of asbestosis or mesothelioma at any time during the appeal period. The Veteran is not undergoing treatment for any current lung disability. In short, the preponderance of the evidence is against granting service connection for lung disability, to include asthma. On this matter, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Peripheral Neuropathy of Right and Left Upper Extremities The Veteran seeks service connection for claimed peripheral neuropathy of right and left upper extremities, as secondary to service-connected diabetes mellitus. Neither service treatment records nor Navy Reserve records show any findings of, or treatment for, peripheral neuropathy of right and left upper extremities. Clinical evaluation of upper extremities was normal at separation examination from active service in July 1968. Here, the evidence does not show that peripheral neuropathy of right and left upper extremities had its onset in active service or within the first year after service. VA records show the onset of diabetes mellitus with neuropathy in 2002, many years after service. A diabetic foot examination in April 2017 includes an assessment of diabetic neuropathy; the Veteran is service-connected for bilateral lower extremity diabetic neuropathy. While VA treatment records continue to note the diagnosis, no complaints or symptoms related to the upper extremities are noted. In December 2019, the Veteran testified that he started having problems with tingling and numbness of fingers and feet in the late 1990’s; and that soon afterwards, he was diagnosed with diabetes mellitus. The Veteran also testified that previously he had surgery for carpal tunnel syndrome and that it might be arthritis. He clarified that the numbness and tingling now was mostly in his feet and “not as much” in his hands. He is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Pursuant to the Board’s remand, the Veteran underwent a VA contract examination in September 2020. The examiner diagnosed diabetic peripheral neuropathy of bilateral lower extremity, and noted symptoms of moderate paresthesias and/or dysesthesias of each lower extremity. Specifically, the examiner found no upper extremity diabetic peripheral neuropathy. While the Veteran has made reports of subjective upper extremity neurological symptoms, none are confirmed on medical evaluation. The medical evidence is found to be more probative, and no diagnosis of upper extremity peripheral neuropathy is established. In short, the evidence weighs against granting service connection for peripheral neuropathy of right and left upper extremities. The benefit-of-the-doubt rule does not apply, and each of the claims must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Acquired Psychiatric Disability The Veteran contends that his acquired psychiatric disability, to include depressive disorder and insomnia, had its onset in active service. He testified to witnessing trauma, including dead bodies, on the flight deck from aircraft accidents. His service treatment records and Navy Reserve records do not reflect any findings or complaints of nervous trouble of any sort, depression or excessive worry, or frequent trouble sleeping. Nor is there evidence of trauma or injury to the Veteran’s skull and brain. Clinical evaluation at the Veteran’s separation examination in July 1968 showed a normal psychiatric system. The Veteran has not since reported in the context of his claim that he experienced any insomnia or depression in service. A review of psychiatric systems in October 2013 and in October 2014 revealed no anxiety and no depression. Screenings were negative for depression in 2017 and in 2019. In December 2019, the Veteran testified that he first started having problems sleeping thirty to forty years ago, and that he went through a period of insomnia where he could not sleep at all. The sleeping problems started within four or five years after service, but not the depressive disorder; his problems with depression started later. Mental status examination in September 2020 included a diagnosis of insomnia. The Veteran’s symptoms did not meet criteria for a diagnosis of post-traumatic stress disorder (PTSD). No other mental disorder was diagnosed. The Veteran reported suffering from insomnia in the late 1970’s; the problem had waxed and waned for a couple of years, and then became more stable. The Veteran denied intrusive thoughts about Vietnam. Following examination in September 2020, the examiner opined that the current diagnosis of insomnia was less likely than not incurred in or caused by active service. In support of the opinion, the examiner reasoned that the Veteran’s insomnia began several years after service; and was not accompanied by symptoms to suggest it was trauma-related, such as nightmares about combat experiences. The Veteran had described taking photographs of potentially traumatic incidents aboard ship as “just bad stuff that happened on the ship.” Here, there is no evidence of continuous symptoms of insomnia since active service; and there is no evidence of a current acquired depressive disorder. To date, the Veteran submitted no evidence or information linking active service to the currently diagnosed insomnia. While he may fervently believe in such a connection, as a layperson the Veteran lacks the competence to render a nexus opinion on such a complex medical question. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In short, the evidence weighs against granting service connection for an acquired psychiatric disability. The benefit-of-the-doubt rule does not apply, and each of the claims must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. As there is no evidence to support any finding of a nexus between service and insomnia, entitlement to the benefit sought is not warranted. REASONS FOR REMAND Bilateral Eye Disability The Board remanded the matter in February 2020 to secure an examination identifying all current eye disabilities and offering an opinion as to whether such were at least as likely as not related to service or to service-connected disease or injury. Since then, in May 2020, a Decision Review Officer granted service connection for diabetes mellitus associated with herbicide exposure. An examination and opinion were obtained in January 2021, but such fails to fulfill the Board’s remand directives. Further remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The January 2021 examiner provided confusing and apparently contradictory findings, and his negative opinion lacked an adequate rationale. The examiner cited to an eye tele-imaging report from May 2019, results of which appear to show retinopathy and normal macula. The Veteran’s medical history revealed that the Veteran wore glasses, was diabetic, and had not been told he had glaucoma or diabetic retinopathy. The only eye conditions noted were lens conditions, including cataracts. The examiner then remarked that the Veteran reported no history of diabetes mellitus. Clarification of all eye conditions must be identified, and a nexus opinion obtained. Specifically, the Veteran seeks service connection for bilateral eye disability, to include glaucoma and diabetic retinopathy, as secondary to service-connected diabetes mellitus. He underwent an eye examination for new glasses in August 2016. He reported no eye complaints and that his vision was stable. Assessments in August 2016 were diabetes mellitus with no retinopathy in each eye (per tele-retinal imaging in March 2016); bilateral cataract (not visually significant); and refractive error. Retinal images revealed no diabetic retinopathy in April 2017, and annual tele-retinal imaging was recommended for surveillance. Visual field testing was conducted in January 2021. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA Eye Conditions examination or a medical review, as appropriate; the claims folder must be reviewed in conjunction with the examination. The examiner must identify any current bilateral eye disability; glaucoma and diabetic retinopathy must be specifically addressed. For each diagnosed condition, the examiner must opine as to whether such is at least as likely as not related to, or part and parcel of, service-connected diabetes mellitus. A full and complete rationale for all opinions expressed is required. The January 2021 visual field testing must be discussed. 2. Then, readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the matter to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary C. Suffoletta 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.