Citation Nr: 21031083 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 15-45 170 DATE: May 20, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the left upper extremity is denied. Entitlement to service connection for peripheral neuropathy of the right upper extremity is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had peripheral neuropathy of the left upper extremity at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had peripheral neuropathy of the right upper extremity at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to July 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at an August 2019 hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. These issues were remanded by the Board in a December 2019 remand order for further development. They have now been returned to the Board. Service Connection The Veteran seeks service connection for peripheral neuropathy of the bilateral upper extremities. He asserts such disabilities are due to herbicide exposure in service. He also asserts such disabilities are due to or aggravated by his service-connected diabetes mellitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent (including Agent Orange), a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C. §§ 1116, 1116A. In the present case, the Veteran's DD-214 reflects service in Vietnam during the applicable time period and in-service exposure to tactical herbicides is presumed. See 38 C.F.R. § 3.309(e). If the Veteran was exposed to an herbicide agent during service, certain specified diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The existence of a current disability is the cornerstone of a claim for VA disability compensation. The Board recognizes that the U.S. Court of Appeals for Veterans Claims (Court) has held that the presence of a chronic disability at any time during or immediately preceding the claims process can justify a grant of service connection, even where the most recent diagnosis is negative. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (holding the current disability requirement may be satisfied by evidence of the disability shortly before the claim is filed). In the present case, the Veteran was afforded a VA examination in March 2012, at which time the examiner found no evidence to support a current diagnosis of peripheral neuropathy of either upper extremity. Likewise, a February 2013 VA examination also was negative for any diagnosis of peripheral neuropathy of either upper extremity. In a July 2013 statement, the same VA examiner wrote there was "no objective evidence" of peripheral neuropathy of the bilateral upper extremities. VA outpatient treatment records dated between 2013 and the present note, however, note a medical history of peripheral neuropathy of the upper and lower extremities. Pursuant to the Board's December 2019 remand order, the Veteran was afforded another VA examination in January 2020. The claims file was reviewed in conjunction with the examination. This examiner, after examination of the Veteran and review of the claims file, concluded there was "no objective evidence" of peripheral neuropathy of the bilateral upper extremities. Thus, based on this evidence, the Board must conclude that service connection for peripheral neuropathy of either upper extremity is not warranted on any basis, as the preponderance of the evidence is against a finding of a current disability for which service connection may be awarded. While VA outpatient treatment records reflect such a diagnosis on several occasions, these appear to be reflections of reported prior medical history and are not based on any clinical findings. As noted above, multiple VA examiners have examined the Veteran and determined that peripheral neuropathy of either upper extremity does not exist. Even though there is no specific diagnosis of peripheral neuropathy, the Board recognizes the observable symptomatology of pain, tingling, and numbness of the upper extremities may potentially constitute a disability for VA compensation purposes. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020) (holding the definition of a disability in 38 U.S.C. § 1110 includes any condition that results in "functional impairment of earning capacity"); see also Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, in order to constitute a disability for VA compensation purposes there must be competent evidence demonstrating the claimed symptoms result in functional impairment impacting earning capacity. In the present case, the record has consistently shown the absence of any functional impairment of the upper extremities. On VA examination in February 2013, the Veteran had full range of motion of the upper extremities, with normal muscle strength, reflexes, and sensory response. Likewise, the more recent January 2020 VA examination found his muscle strength of the upper extremities, to include grip strength, was within normal limits. No muscle atrophy was observed. Deep tendon reflexes were slightly decreased at the biceps and triceps, but sensory response was normal. Overall, the preponderance of the evidence is against a finding that the claimed symptoms result in any functional impairment which diminishes the Veteran's earning capacity. The Veteran himself contends he has a current diagnosis of bilateral peripheral neuropathy of the upper extremities. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, neurological disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the preponderance of the evidence is against the award of service connection for peripheral neuropathy of the upper extremities, as the Veteran does not have a current diagnosis of this disability. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.