Citation Nr: 21040866 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 15-16 406 DATE: July 7, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the right upper extremity is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity is denied. REMANDED Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. FINDINGS OF FACT 1. The Veteran's peripheral neuropathy of the right upper extremity did not begin in, and is not otherwise etiologically related to, his active duty military service or to service-connected diabetes mellitus, type II, or prostate cancer. 2. The Veteran's peripheral neuropathy of the left upper extremity did not begin in, and is not otherwise etiologically related to, his active duty military service or to service-connected diabetes mellitus, type II, or prostate cancer. CONCLUSIONS OF LAW 1. The criteria for an entitlement to service connection for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307. 3.309, 3.310. 2. The criteria for an entitlement to service connection for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307. 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 to November 1971. Although the Veteran requested a hearing before the Board in his April 2015 substantive appeal, he subsequently withdrew his hearing request. Thus, his hearing request is deemed withdrawn. With regards to service connection claims for peripheral neuropathy of the right upper extremity, the Board finds that there has been substantial compliance with the previous Board remand instructions, as an adequate VA examination has been obtained accordingly. Stegall v. West, 11 Vet. App. 268 (1998). However, the Board regrettably finds another remand necessary for service connection claims for peripheral neuropathy of the left and right lower extremity, as will be explained further in the Remand section below. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist, or with the conduct of his requested Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. See Gilbert, 1 Vet. App. at 53. The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be considered on a secondary basis pursuant to 38 C.F.R. § 3.310. The evidence must demonstrate an etiological relationship between a service-connected disability and the condition said to be proximately due to or the result of the service-connected disability. See Buckley v. West, 12 Vet. App. 76, 84 (1998). Secondary service-connection may also be warranted for a nonservice-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for peripheral neuropathy of the right upper extremity 2. Entitlement to service connection for peripheral neuropathy of the left upper extremity The Veteran seeks service connection for peripheral neuropathy of the left and right upper extremity. He believes these conditions are due to his military service, to include in-service exposure to chemicals used to cleaning and maintaining aircraft. Alternatively, he believes these conditions are associated with his service-connected diabetes mellitus type II or prostate cancer. The Veteran also submitted a letter from his private physician, stating that they never diagnosed him with peripheral neuropathy in 1999, and clarified that he was being treated for other issues with his back and shoulders that caused radiculopathy, and not peripheral neuropathy. It is not in question that the Veteran has current peripheral neuropathy disabilities of the right and left upper extremity, as he has been diagnosed with various disabilities throughout the appeal period, to include carpal tunnel syndrome (CTS), sensory neuropathy of both hands, and upper extremity sensory disturbance. The Veteran's service treatment records are silent as to any complaints, treatments, or diagnosis related to peripheral neuropathy of the right and left upper extremity. His November 1971 separation examination reveals all clinically normal conditions, and the Veteran did not report any neurological symptoms affecting the right or left upper extremity during that time. In fact, he reported being in good health during that time. The Veteran first underwent a VA examination in March 2008, during which time the onset of his sensory neuropathy of hands was noted as 1999. After diagnosing the Veteran with sensory neuropathy of both hands, the examiner opined that the Veteran's neuropathy was not caused by or a result of his service-connected diabetes mellitus, type II, because the onset of neuropathy pre-dated the onset of diabetes mellitus, type II. However, the examiner at the time did not opine as to a potential etiology between prostate cancer and the Veteran's current disabilities, as well as that between exposure to workplace chemicals and environmental pollutants to peripheral neuropathy. The Veteran was afforded another VA examination in September 2014, during which time he reported having developed numbness of the hands in 2011. However, as noted in the previous Board remand, the Board had found this opinion inadequate to the extent that the examiner had failed to opine as to whether the Veteran's peripheral neuropathy disabilities of the right and left upper extremity were aggravated by his service-connected diabetes mellitus, type II. The examiner at the time only addressed the aspect of causationthat the Veteran's peripheral neuropathy disabilities of the right and left upper extremity were not caused by his service-connected diabetes mellitus, type II, considering that the onset of peripheral neuropathy preceded that of his service-connected diabetes mellitus, type II. Thus, the Board previously remanded, in part, for obtaining a new medical opinion on aggravation aspect of secondary service connection (in addition to addressing a potential etiology between his service-connected prostate cancer and the current peripheral neuropathy disabilities, and between exposure to workplace chemicals and environmental pollutants to peripheral neuropathy). Post-remand, a new VA examination/medical nexus opinion was obtained in September 2019. The Veteran reported first noticing his hands getting numb sometime after being diagnosed with diabetes in 2005, which he also noted was the time that he was working as a truck driver. The examiner ultimately opined that the Veteran's bilateral upper extremity peripheral neuropathy was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that he "did not start having symptoms of upper extremity peripheral neuropathy until early 1999/2000s, not during service or shortly thereafter. Therefore, exposures during service are less likely the cause of his carpal tunnel syndrome. He was diagnosed with bilateral carpal tunnel syndrome (CTS) in the early 2000s. His profession was that of a truck driver. Carpal tunnel syndrome is not uncommon in truck drivers due to hours of gripping the steering wheel and the vibration from the truck. This is the likely cause of his CTS in bilateral upper extremities." After reviewing all pertinent records, the Board finds that the preponderance of the evidence does not demonstrate that the Veteran's peripheral neuropathy disabilities of the right and left upper extremities are related to his military service. In making this determination, the Board assigns a high probative value to the 2019 VA examination, as this opinion was provided after extensive review of all pertinent records, substantiated by concrete factual findings. There is no other medical etiology opinion of record. His treatment records only suggest that he first complained of and had the onset of his peripheral neuropathy of the upper extremity years after separating from service, tending to support the negative nexus opinion (see October 2007 private treatment records, first complained of bilateral hand paresthesias in 2007, during which time he was diagnosed with CTS; see also VA treatment records from 2001, even though he first established care with VA as early as 2001, it seems that it was not until 2013 that he first complained of numbness/tingling in pain and reported its onset as about 2-3 years ago, see, i.e., January 2013 VA treatment records; see also February 2013 VA treatment records, diagnosing with right hand numbness, tingling, pain). The Board acknowledges the VSO's contention that the Veteran has held various other job positions post-separation, besides truck driver (which he held after taking on various other jobs post-service (produce manager for 26 years and sales for 10 years), and that the Veteran first started to work with hands repetitively due to MOS (helicopter repairman), seemingly suggesting that this very aspect of his MOS should have been considered for the direct service connection opinion. Here, even though the 2019 VA examiner did not directly address this very aspect of his MOS ("using hand repetitively as due to MOS"), the examiner did generally consider a potential etiology between his peripheral neuropathy disabilities and his military service, as well as the late onset of his peripheral neuropathy symptoms (many years after service). Moreover, the Board reiterates that his service treatment records are silent as to any complaints, treatments, or diagnosis relating to peripheral neuropathy disabilities, and underlines that the Veteran himself reported the onset of his peripheral neuropathy as years after separating from service throughout the VA examinations. Additionally, the Veteran having held other job positions post-service does not negate the fact that the Veteran still held a truck driver position nor the finding that it is not uncommon in truck drivers to have CTS due to hours of gripping the steering wheel and the vibration from the truck. The Veteran himself reported during the 2019 VA examination having first noticed numbness of hands around 2005, during which time he worked as a truck driver (reported he would switch hands to rest one at a time as they would get numb when gripping the wheel), which only all the more corroborate the finding that this condition had its onset post-service. The Board is also cognizant of a letter from the Veteran's private physician (that they never diagnosed him with peripheral neuropathy in 1999), as well as his own statement that he was being treated for other issues with his back and shoulders that caused radiculopathy, and not peripheral neuropathy. However, the Board points out that this letter only provides that their office never diagnosed him with peripheral neuropathy in 1999, not that the Veteran was never diagnosed with peripheral neuropathy in 1999. Moreover, the Board notes that either time (1999 or 2007) is almost 20-26 years after the Veteran separated from service (in 1971). Thus, his claim is denied on the basis of direct service connection. Turning to the evidence pertinent to the secondary service connection, the September 2019 VA examiner opined that the Veteran began having symptoms of CTS prior to his diagnosis of service-connected diabetes mellitus and treatment of prostate cancer, and further provided pathophysiology of peripheral neuropathy in support of the negative nexus opinion (that diabetic peripheral neuropathy generally starts in the longer nerves, such as those in the legs, first, and later affects the upper extremities.) Here, the 2019 examiner indicated that the Veteran's peripheral nerve condition began in the upper extremities first, suggestive of negative causation (see secondary service connection opinion for causation provided for peripheral neuropathy of right and left lower extremity of the September 2019 VA examination)). As for the aspect of aggravation, the examiner stated that the Veteran's service-connected diabetes mellitus, type II, has been well controlled over the years, and also pointed out that the mainstream medical literature does not support well-controlled diabetes or treatment for prostate cancer aggravating CTS. The Board again finds this opinion to have a high probative value as it was supported by concrete factual findings after reviewing all pertinent records. Thus, his claim is denied on the basis of secondary service connection as well. Although the Board acknowledges medical treaties the VSO cited in the December 2018 argument (relating in-service exposure to workplace chemicals and environmental pollutants and peripheral neuropathy, as well as between peripheral neuropathy and prostate cancer), these have been considered in the most recently obtained VA examination/nexus opinion, to which the Board assigns the most probative value. There is no other medical etiology opinion pertinent to this case. The Board fully considered the lay statements provided from the Veteran and his VSO that his peripheral neuropathy disabilities are related to his service or to his service-connected disabilitieswhich are competent insofar as they relate observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, when it comes to these seeking to establish a medical nexus, the Board points out that the issue of medical etiology is medically complex, as it requires medical training. Thus, to the extent that the Veteran has attributed the cause of his current disabilities to military service and his service-connected disabilities, the Board gives no probative value to such lay assertions and gives more probative value to the probative medical evidence of record. Accordingly, the Veteran's claim is denied. Accordingly, the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for these claims. As such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. 2. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. Although a VA medical nexus opinion was obtained, post-Board remand, in September 2019, the examiner at the time was provided with a wrong standard for aggravation for the secondary service connection opinion ("whether the Veteran's claimed condition is at least as likely as not aggravated beyond its natural progression by service-connected disabilities, to include diabetes mellitus II and prostate cancer"). Accordingly, after answering "no" to the requested opinion, the examiner furnished an erroneous opinion, stating "the Veteran has subjective complaints of bilateral lower extremity pain and numbness in the feet. There is no objective evidence found of the Veteran having nerve damage in his legs as his nerve conduction study done in 2014 was normal with no evidence of peripheral neuropathy." As the examiner used a wrong standard in furnishing an aggravation opinion, the Board finds a remand is required for a medical addendum opinion. With regards to a negative secondary service connection (service connection for peripheral neuropathy of the right and left lower extremity, secondary to service-connected prostate cancer), the Board finds this examination adequate, and thus finds another remand not necessary. Notably, the examiner noted that while diabetic peripheral neuropathy begins in the lower extremities first, the Veteran's symptoms in the lower extremities began sometime after the upper extremity CTS, and further pointed out that the onset of the Veteran's peripheral neuropathy of the lower extremities began prior to diagnosis/treatment of his prostate cancer. As for the direct service connection medical opinion (negative medical etiology), although the examiner did note the late onset of the peripheral neuropathy of the lower extremity (sometime in the 2000s), and suggested an alternative etiology ("may be related to the Veteran's previous back surgeries for herniated discs"), the Board notes that the examiner did not specifically address as requested whether the Veteran's neuropathy condition was caused or incurred as a result of his active duty service, to include exposure to chemicals and pollutants from aircraft. To the extent that the examiner had failed to address potential nexus between military service and his current neuropathy disabilities of the lower extremity, and as this is being remanded anyway, the Board will also request the examiner to address whether his current disabilities are related to the repetitive use of hands as due to his MOS. The matters are REMANDED for the following action: 1. Obtain a medical addendum opinion from the September 2019 VA examiner, or if unavailable, from another VA examiner. The examiner must review the complete claims file. Then, the examiner must address the following, with full supporting rationales: a) Is it as likely as not the Veteran's bilateral peripheral neuropathy of the right and left lower extremities are at least as likely as not related to his active duty, to include in-service exposure to chemicals and pollutants from aircraft or from repetitive use of hands as due to his MOS (helicopter repairman)? b) Is it at least as likely as not the Veteran's bilateral peripheral neuropathy of the right and left lower extremities are aggravated by the service-connected diabetes mellitus type II or prostate cancer? In the 2019 opinion, the examiner furnished an erroneous opinion by using a wrong standard. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury (regardless of its permanence), not due to the natural progress of the nonservice-connected disease. If the examiner cannot provide an opinion without resorting to speculation, then the examiner must explain why. The examiner is advised that the Veteran is competent to report observable symptomatology, and that the Veteran's lay statements should be presumed to be credible for the purposes of the examination only. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lee 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.