Citation Nr: 21039807 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 15-37 388 DATE: July 1, 2021 ORDER Entitlement to service connection for peripheral sensory neuropathy of the bilateral upper extremities is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is remanded. Entitlement to service connection for a respiratory disability, claimed as weak lungs, is remanded. Entitlement to service connection for benign prostatic hypertrophy is remanded. Entitlement to service connection for hypothyroidism is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had peripheral sensory neuropathy of the bilateral upper extremities 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 a diagnosis of PTSD or any other acquired psychiatric disability 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 sensory neuropathy of the bilateral upper extremities have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 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 Army from October 1955 to November 1957 and from November 1962 to October 1976. He also served on active duty in the United States Air Force from November 1958 to October 1962. The Veteran served in the Republic of Vietnam from August 1968 to August 1969. This matter comes to the Board of Veterans' Affairs (Board) on appeal from a January 2012 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in March 2018 and December 2019 for additional development. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). As an initial matter, the Board notes that only partial service treatment records have been associated with the Veteran's claims folder. The rest are missing and presumed destroyed in a 1973 fire. The Board finds that additional efforts to obtain these records would be futile. See 38 U.S.C. § 5103A(b)(3). The Board has considered the U.S. Court of Appeals for Veterans Claims (Court) statement in Washington v. Nicholson, 19 Vet. App. 362, 371 (2005) that: [I]n cases where, as here, the appellant's SMR's have been lost or destroyed, the Board's obligation to provide well-reasoned findings and conclusions to evaluate and discuss all of the evidence that may be favorable to the appellant, and to provide an adequate statement of the reasons or bases for its rejection of such evidence is heightened. The Board has undertaken its analysis with this heightened duty in mind. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability"). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for peripheral sensory neuropathy of the bilateral upper extremities The Veteran seeks service connection for peripheral sensory neuropathy of the right and left upper extremities, which the Veteran contends was caused by in-service herbicide exposure. In his October 2010 VA Form 21-526 (Application for VA disability benefits), the Veteran indicated that he was applying for VA benefits related to upper extremity peripheral sensory neuropathy related to in-service exposure to Agent Orange. The application did not contain any additional detail with regard to his claimed bilateral upper extremity peripheral neuropathy. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of peripheral sensory neuropathy of the bilateral upper extremities and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In March 2019, the Veteran was afforded a VA examination with regard to the etiology of any current present peripheral neuropathy. At that time, the examiner found that the Veteran did not have any neurological disability of the right or left upper extremities. Significantly, the Veteran denied any numbness or tingling in his hands or any radiation of pain, numbness, or tinging from his neck or shoulders into his hands. On examination, sensation was intact to light touch in both upper extremities and the Veteran had normal muscle strength and deep tendon reflexes bilaterally. Further, available VA and private treatment records do not contain a diagnosis of any neurological disability in the right or left upper extremities. The Veteran himself is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As the record does not reflect a current diagnosis of right or left upper extremity peripheral neuropathy, the cornerstone element of service connection has not been met, and service connection is not warranted. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, supra. In this case, there is no credible persuasive evidence or allegation that the Veteran suffers from right or left upper extremity peripheral neuropathy that is productive of functional impairment. To that end, the record contains no evidence or allegation that the Veteran experiences functional impairment associated with upper extremity peripheral neuropathy. Indeed, the March 2019 VA examination report shows no evidence of impairment associated with upper extremity peripheral neuropathy. See Saunders v. Wilkie, supra. In addition, the record does not reflect, and the Veteran has not alleged, that he suffers from impairment of earning capacity due to his claimed upper extremity peripheral neuropathy that is of similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). As the preponderance of the evidence weighs against finding that the Veteran has a current neurological disability of the right or left upper extremities, entitlement to service connection for peripheral sensory neuropathy of the bilateral upper extremities is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD, which he contends was caused by his service in Vietnam. In his October 2010 VA Form 21-526, the Veteran indicated that he was applying for VA benefits related to PTSD. The application did not contain any additional detail with regard to his claimed PTSD. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of PTSD or any other acquired psychiatric disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The June 2011 VA examiner evaluated the Veteran and determined that, while he experienced mild subjective symptoms of anxiety and difficulty sleeping, he did not currently meet the diagnostic criteria for any acquired psychiatric disability, to include PTSD. Further, VA and private treatment records do not contain a diagnosis of PTSD or any other acquired psychiatric disability. While the Veteran believes he has a current diagnosis of PTSD, he is not competent to provide a diagnosis in this case. The diagnosis of psychiatric disabilities is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As the record does not reflect a current diagnosis of an acquires psychiatric disorder, the cornerstone element of service connection has not been met, and service connection is not warranted. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, supra. In this case, there is no credible persuasive evidence or allegation that the Veteran suffers from an acquired psychiatric disorder that is productive of functional impairment. To that end, the record contains no evidence or allegation that the Veteran experiences functional impairment associated with an acquired psychiatric disorder. In addition, the record does not reflect, and the Veteran has not alleged, that he suffers from impairment of earning capacity due to his claimed acquired psychiatric disorder that is of similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). In this regard, the July 2011 VA examiner reported that the Veteran's anxiety was intermittent and quickly resolved. Based on all the above evidence, entitlement to service connection for an acquired psychiatric disability, to include PTSD, must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for peripheral sensory neuropathy of the bilateral lower extremities The Veteran seeks service connection for peripheral neuropathy of the right and left lower extremities, which he contends was caused by herbicide exposure. The Veteran served in the Republic of Vietnam from August 1968 to August 1969. Therefore, exposure to herbicides is conceded. Additionally, the Veteran has been diagnosed with peripheral sensory neuropathy of the bilateral lower extremities. At issue is whether the Veteran's disability is related to his active service, to include herbicide exposure. VA regulations provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson's disease, ischemic heart disease, parkinsonism, bladder cancer, and hypothyroidism. 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 an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). Here, there is no evidence that the Veteran's peripheral neuropathy of the bilateral lower extremities manifested to a compensable degree within one year of exposure. Accordingly, service connection cannot be granted on a presumptive basis. However, where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has held that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). An opinion was requested to address any possible relationship between the Veteran's current peripheral neuropathy of the lower extremities and the Veteran's active service, to include herbicide exposure. In March 2021, a VA examiner opined that it is less likely than not the Veteran's peripheral sensory neuropathy of the right and left lower extremities are related to service. However, the examiner based his conclusions on the fact that the Veteran's peripheral neuropathy did not manifest to a compensable degree within one year of exposure. Thus, the opinion is inadequate. Once VA undertakes an examination, an adequate one must be produced. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, a remand is required for a new VA medical opinion. Entitlement to service connection for a respiratory disability, claimed as weak lungs The Veteran seeks service connection for a respiratory disability, claimed as "weak lungs." Private medical records show that the Veteran has been diagnosed with chronic bronchitis and chronic obstructive pulmonary disease (COPD). Partial service treatment records show treatment on multiple occasions for upper respiratory infections, sore throat, colds, and pharyngitis. No VA medical examination has been provided to address whether there is any relationship between the Veteran's in-service treatment and his current respiratory condition. Additionally, the Veteran contends that his respiratory condition was caused by exposure to Agent Orange. The Veteran had service in the Republic of Vietnam; accordingly, exposure to herbicide is conceded. No VA medical examination has been provided to address whether the Veteran's current respiratory disability was caused by exposure to Agent Orange. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a respiratory disability because no VA examiner has opined whether the Veteran's current respiratory condition had onset during the Veteran's active service or was caused by exposure to Agent Orange. Entitlement to service connection for benign prostatic hypertrophy is remanded. The Veteran seeks service connection for benign prostatic hypertrophy, which he contends was caused by exposure to Agent Orange. As stated above, the Veteran had service in the Republic of Vietnam; accordingly, exposure to herbicide is conceded. No VA medical examination has been provided to address whether the Veteran's current benign prostatic hypertrophy was caused by exposure to Agent Orange. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for benign prostatic hypertrophy because no VA examiner has opined whether the Veteran's current condition was caused by exposure to Agent Orange. Entitlement to service connection for hypothyroidism is remanded. The Veteran seeks service connection for hypothyroidism, which he contends was caused by exposure to Agent Orange. The Veteran had service in the Republic of Vietnam; accordingly, exposure to herbicide is conceded. No VA medical examination has been provided to address whether the Veteran's current hypothyroidism was caused by exposure to Agent Orange. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for hypothyroidism because no VA examiner has opined whether the Veteran's current condition was caused by exposure to Agent Orange. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's peripheral sensory neuropathy of the bilateral lower extremities is at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the claimed disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents. Provide a rationale to support the requested opinions. 2. Schedule the Veteran for a VA examination for his respiratory disability. The examiner must review the claims file. The examiner should identify any current respiratory disability or disabilities. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: a. Is the Veteran's respiratory disability at least as likely as not related to service, including in-service treatment for upper respiratory infections and pharyngitis? In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? b. Is the Veteran's respiratory disability at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the claimed disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents. Provide a rationale to support the requested opinions. 3. Schedule the Veteran for a VA examination for his benign prostatic hypertrophy. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's benign prostatic hypertrophy at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the claimed disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents. Provide a rationale to support the requested opinion. 4. Schedule the Veteran for a VA examination for his hypothyroidism. The examiner must review the claims file. The examiner is asked to provide a response to the following: a. Is it at least as likely as not that the Veteran's hypothyroidism (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? b. Is the Veteran's hypothyroidism at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the claimed disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents. Provide a rationale to support the requested opinions. Christopher J. O'Donnell Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.