Citation Nr: 22015752 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 14-42 669 DATE: March 18, 2022 ORDER Service connection for a right upper extremity nerve disorder, to include idiopathic peripheral neuropathy and carpal tunnel syndrome, to include as secondary to service-connected diabetes mellitus type II is denied. Service connection for a left upper extremity nerve disorder, to include idiopathic peripheral neuropathy and carpal tunnel syndrome, to include as secondary to service-connected diabetes mellitus type II is denied. FINDINGS OF FACT 1. The Veteran's right upper extremity nerve disorder was not caused by exposure to Agent Orange in Vietnam. 2. The Veteran's left upper extremity nerve disorder was not caused by exposure to Agent Orange in Vietnam. 3. The Veteran's right upper extremity nerve disorder was not caused and/or aggravated by service-connected diabetes mellitus type II. 4. The Veteran's left upper extremity nerve disorder was not caused and/or aggravated by service-connected diabetes mellitus type II. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a right upper extremity nerve disorder have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(d), 3.310. 2. The criteria to establish service connection for a left upper extremity nerve disorder have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(d), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1967 to April 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Houston, Texas Regional Office (RO). In October 2018, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO. During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In January 2022, the Board remanded the appeal to the RO for additional action. The RO complied with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Right and Left Upper Extremity Nerve Disorder Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection shall be granted on a secondary basis under 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder caused or aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran asserts that his right and left upper extremity nerve disorder was caused by exposure to Agent Orange in Vietnam, or alternatively, caused and/or aggravated by service-connected diabetes mellitus type II (DM). The claim will be denied on both theories of direct and secondary service connection. The Veteran's diagnosed bilateral upper extremity nerve disorders idiopathic peripheral neuropathy and carpal tunnel syndrome are not listed as chronic diseases subject to presumptive service connection. 38 C.F.R. § 3.309(a). Military personnel records (MPRs) show that the Veteran served in the Republic of Vietnam from April 1968 to April 1969 and he is therefore presumed exposed to Agent Orange. 38 C.F.R. § 3.307(a)(6)(iii). However, the Veteran's diagnosed bilateral upper extremity nerve disorders are not listed as diseases associated with exposure to certain herbicide agents. 38 C.F.R. § 3.309(e). Presumptive service connection under the noted regulations is therefore not applicable. Service treatment records (STRs) do not show complaints or contemporaneous reports pertaining to an upper extremity nerve disorder. In the Veteran's April 1969 separation medical history and examination report, the Veteran answered "no" to the question of whether he then had, or once had neuritis and the service medical examiner found no neurological abnormalities, respectively. The STRs are highly probative both as to the Veteran's subjective reports and their resulting objective findings because they were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). In a September 1970 VA examination not focused on the Veteran's bilateral upper extremity nerve disorder, the Veteran did not report symptoms of neuropathy. The examination report concerning the Veteran's lack of symptoms of neuropathy is highly probative. Fed. R. Evid. 803(4) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care); Rucker, 10 Vet. App. at 73. The Veteran claims having "numbing itching joints, peripheral neuropathy" since service. However, the Veteran is not credible in his assertion of having symptoms of neuropathy since service because, as noted, STRs do not show complaints or contemporaneous reports pertaining to an upper extremity nerve disorder, the Veteran answered "no" to the question of whether he then had, or once had neuritis at service separation, the service medical examiner found no neurological abnormalities at service separation, and the Veteran did not report symptoms of neuropathy during a September 1970 VA examination approximately 17 months post-service. As a layperson, the Veteran is competent to report his observable symptoms. However, he does not have the education, training, or experience to provide an opinion as to the onset of peripheral neuropathy and/or attribute such symptoms to a medical diagnosis of peripheral neuropathy. 38 C.F.R. § 3.159(a)(1); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A November 2016 non-VA treatment record titled "Patient Result" from "Neurology UT Physicians" authored by Scott B. Serlin, M.D., reflects the Veteran's diagnoses of bilateral upper extremity idiopathic peripheral neuropathy and carpal tunnel syndrome. A September 2018 non-VA treatment record titled "Patient Result Letter" from "UT Physicians" authored by Khanh D. Huynh, M.D., reflects the Veteran's diagnosis of limb numbness. In his October 2018 Board hearing, the Veteran testified that the severity of his bilateral upper extremity numbness was "minor" until approximately four years prior. The Veteran does not have the education, training, or experience to provide a medical opinion as to the cause or aggravation of his bilateral upper extremity nerve disorder. 38 C.F.R. § 3.159(a)(1); Jandreau, 492 F.3d at 1372. An October 2018 VA treatment record noted no tingling or numbness and that the Veteran's neuropathy was stable. A November 2018 VA disability benefits questionnaire authored by Holly Varner, M.D., reflects the Veteran's diagnoses of idiopathic neuropathy and carpal tunnel syndrome. Dr. Varner noted the Veteran's 10-to-15-year history of progressive numbness and tingling in both hands and that the Veteran's sensory axonal symptoms were consistent with peripheral neuropathy and carpal tunnel syndrome. A July 2019 non-VA treatment record from "UT Physicians" authored by Dr. Varner reflects the Veteran's diagnosis of idiopathic neuropathy. Dr. Varner noted that the Veteran's "neuropathy appears to be worsening" and scheduled the Veteran for an abdomen and pelvic radiograph. Dr. Varner's indication as to aggravation is of low probative value because it is speculative, general and/or inconclusive in nature, and therefore cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). In July 2019, the Veteran underwent a non-VA abdomen and pelvic radiograph with "Memorial Hermann Imaging Service Texas Medical Center" that revealed idiopathic neuropathy. The Veteran reported numbness and tingling in both upper extremities. An October 2019 VA treatment record noted the Veteran's diagnosis of neuropathy as stable. Four VA medical opinions concerning direct and/or secondary service connection January 2020, May 2021, August 2021, and November 2021 were found inadequate in Board remands dated November 2020, August 2021, October 2021, and January 2022, respectively. As discussed below, responsive VA addendum opinions have been provided. The January 2022 VA examiner opined that the Veteran's right and left upper extremity nerve disorder was not caused by exposure to Agent Orange in Vietnam because the Veteran was not diagnosed with a bilateral upper extremity nerve disorder within 10 years of service separation and was initially diagnosed in 2014 approximately 45 years post-service. As to secondary service connection, the examiner opined that the Veteran's right and left upper extremity nerve disorder was not caused by his service-connected DM for several reasons. The examiner indicated that the Veteran was initially diagnosed with idiopathic neuropathy in 2014 and was not diagnosed with DM at that time. Additionally, the Veteran was diagnosed with DM after his carpal tunnel syndrome had resolved. The examiner opined that the Veteran's right and left upper extremity nerve disorder was not aggravated by service-connected DM because there were no objective findings of upper extremity neuropathy or carpal tunnel syndrome during the examination indicating a lack of aggravation. The January 2022 VA addendum opinions as to direct and secondary service connection are highly probative because the examiner considered the Veteran's medical history as evidenced by referring to the timing of relevant diagnoses; the examiner described the Veteran's bilateral upper extremity nerve disorder in sufficient detail as evidenced by noting that the Veteran's nerve disorder did not manifest within 10 years of service separation and the examination revealed no objective findings of a bilateral upper extremity nerve disorder; and provided negative etiology opinions based on an accurate and complete understanding of the Veteran's medical history with sufficient rationale. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). (CONTINUED ON THE NEXT PAGE) The evidence is not in approximate balance between that favoring the claims and against the claims. The Veteran is not credible in his assertion of having symptoms of neuropathy since service. STRs do not show complaints or contemporaneous reports pertaining to an upper extremity nerve disorder, the Veteran answered "no" to the question of whether he then had, or once had neuritis and the service medical examiner found no neurological abnormalities at service separation. The Veteran did not report symptoms of neuropathy during a September 1970 VA examination approximately 17 months post-service. The January 2022 VA examiner opined that the Veteran's right and left upper extremity nerve disorder was not caused by exposure to Agent Orange in Vietnam and was not caused and/or aggravated by his service-connected diabetes mellitus type II. There is no reasonable doubt, and the claims are denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED