Citation Nr: 23039686 Decision Date: 07/19/23 Archive Date: 07/19/23 DOCKET NO. 14-20 416A DATE: July 19, 2023 ORDER Entitlement to service connection for right upper extremity peripheral neuropathy, to include as secondary to service-connected Type II diabetes mellitus and/or exposure to herbicide agents is denied. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as secondary to service-connected Type II diabetes mellitus and/or exposure to herbicide agents is denied. FINDING OF FACT The evidence persuasively weighs against a finding that the Veteran has had a current diagnosis of peripheral neuropathy of the right and left upper extremities at any time during or approximate to the pendency of his claims and any prior diagnosis of such are shown to be invalid as determined by a medical doctor. CONCLUSIONS OF LAW 1. The criteria to establish service connection for right upper extremity peripheral neuropathy to include as secondary to service-connected Type II diabetes mellitus (hereinafter referred to as diabetes) and/or exposure to herbicide agents, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria to establish service connection for left upper extremity peripheral neuropathy to include as secondary to service-connected diabetes and/or exposure to herbicide agents, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1969 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran and his spouse testified during a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is of record and has been reviewed. Thereafter, the Veteran was afforded a Board hearing in May 2018; however, due to technical difficulties, the Board was unable to obtain a transcript of the hearing, and in December 2018 the Board notified the Veteran that he could attend an additional hearing. However, the Veteran responded that he did not wish to appear at another hearing. Nonetheless, later in January 2021, the Veteran did testify at a virtual hearing before the undersigned VLJ. A copy of the hearing transcript is of record and has been reviewed. By way of procedural background in January 2019, May 2021, and October 2022, the Board remanded the claim for Social Security Administration (SSA) records and VA examinations and medical opinions. There since has been substantial compliance with those remand directives, for the claim adjudicated below as records were obtained and an adequate medical opinion was obtained. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that another remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be granted for a disability resulting from a 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 also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Pertinent here, peripheral neuropathy is an organic disease of the nervous system which is considered a "chronic disease" under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). Additionally, where a veteran served 90 days or more of active service, and a chronic disease including peripheral neuropathy becomes manifest to a degree of 10 percent or more within one year after the date of separation from 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, 1137 (2012); 38 C.F.R. §§ 3.307(a)(3), 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. Additionally, VA has established a presumption of herbicide exposure applicable to Veterans who served in Republic of Vietnam during the Vietnam War. Specifically, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. Certain diseases, such as early-onset peripheral neuropathy, are deemed associated with herbicide agent exposure under VA law and shall be service connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is 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. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection may also be warranted for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection under 38 C.F.R. § 3.310 (a) is warranted where a non-service-connected disability would have been less severe but for a service-connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the non-service-connected disability. Spicer v. McDonough, No. 2002-1239 (Fed. Cir. March 8, 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A layperson is competent to report the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 1. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as secondary to service-connected Type II diabetes mellitus and/or exposure to herbicide agents 2. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as secondary to service-connected Type II diabetes mellitus and/or exposure to herbicide agents The Veteran contends that he has peripheral neuropathy of the right and left upper extremities that are etiologically related to his service-connected diabetes mellitus type 2 (diabetes), or alternatively related to service, to include herbicide exposure therein. See July 2013 Notice of Disagreement (NOD). Service treatment records (STRs), to include the Veteran's June 1989 Reports of Medical History and Examination for Retirement, reveal no complaints or findings of neuropathy, numbness or tingling. The Veteran separated from service in September 1991. There are no clinical records for approximately the next two decades. A March 2011 VA optometry consultation notes the Veteran had diabetes which was controlled orally with medication. At a March 2011 VA examination for diabetes, there were no complaints of polyneuropathy and the examiner found no objective findings to support a diagnosis of diabetes. The Veteran was afforded a VA diabetic sensory-motor peripheral neuropathy examination in February 2012. The Veteran reported the onset of diabetes in 2010, with current symptoms of intermittent pain and tingling in the forearms. Neurological examination of the upper extremities was normal and there was no functional impairment. The examiner noted there was no diagnosis or objective findings to support the complaints of diabetic peripheral neuropathy of the upper extremities. Government clinical records thereafter indicate the Veteran underwent a neurosurgical consultation in October 2012 for pain and paresthesias in the neck, shoulder and upper extremity, which began eighteen months earlier. His past medical history included a notation of peripheral neuropathy of the upper extremities. A magnetic resonance imaging scan (MRI) was significant for C3-4 herniated nucleus pulposus with compression of the spinal cord and nerve roots. The examiner recommended conservative treatment and potential cervical spine surgery. A January 2013 problem list includes a diagnosis of unspecified idiopathic peripheral neuropathy. A March 2013 consultative examination for Social Security benefits noted the Veteran endorsed intermittent tingling in both arms. In May 2013, the Veteran underwent electrodiagnostic testing at W.W. Medical Center due to complaints of cervicalgia on the right, and left upper extremity numbness and discomfort. A needle electromyography (EMG) showed no abnormalities of the bilateral upper extremities. The physician noted the electrodiagnostic studies showed evidence of a mild median neuropathy at the right wrist consistent with carpal tunnel syndrome, and no evidence of a cervical radiculopathy or neuropathies. In June 2013, the Veteran was afforded additional electrodiagnostic testing (EMG and NCV studies) at a government facility due to a four-year history of daily upper extremity burning and foot burning. The impression was diabetic neuropathy of the lower extremities. The physician interpreting the EMG also referenced the May 2013 EMG/NCV report from W.W. Medical Center which showed right median neuropathy at the right wrist consistent with carpal tunnel syndrome. A government August 2013 NCV study showed left ulnar neuropathy across the elbow. The EMG examination showed evidence of C6 radiculopathy without clinical correlation. The report noted the Veteran was to continue to be seen in the "Neurology clinic for management of his painful diabetic neuropathy." The diagnosis was left cubital tunnel syndrome. A September 2013 problem list shows a notation of diabetic peripheral neuropathy type 2. In a report of a VA diabetic sensory-motor peripheral neuropathy examination, dated in June 2014, the examiner, a medical physician, confirmed a diagnosis of diabetic peripheral neuropathy of the bilateral lower extremities, noting the June 2013 EMG. There were no complaints or findings relative to the upper extremities, to include functional impairment. A July 2018 government diabetic sensory-motor peripheral neuropathy Disability Benefits Questionnaire (DBQ) reflects a diagnosis of diabetic neuropathy. The Veteran reported moderate itching of the thumb and index fingers of the left hand. Neurologic examination of the upper extremities revealed no abnormal findings apart from mild incomplete paralysis of the right ulnar nerve. The examiner, a medical physician, indicated that the Veteran did not have upper extremity diabetic peripheral neuropathy, but did have lower extremity diabetic peripheral neuropathy. The examiner also referenced the findings from the June and July 2018 EMG studies which showed right ulnar neuropathy at the elbow, residual from previous right cervical radiculopathy, and suspected mild left ulnar neuropathy at the elbow. In April 2018, the Veteran testified that he experienced tingling and numbness in his hands down to his fingers. A government "problem list" reflects continued listings dating from May to August 2018 of diabetes with diabetic neuropathy, unspecified. The Veteran was afforded a VA diabetic sensory-motor peripheral neuropathy examination in January 2020 at which time the Veteran reported tingling and numbness in the arms. Neurological examination was normal and the examiner, a medical physician, noted there was insufficient evidence to warrant or confirm a diagnosis of acute or chronic diabetic neuropathy of the upper extremities, noting the 2013 EMG study. The reported symptomatology was attributed to residuals of the Veteran's cervical surgeries. The Board however deemed this examination report inadequate to decide the claim as it relied on the 2013 EMG studies, did not reconcile the prior diagnoses of peripheral neuropathy, and did not consider the Veteran's lay statements. See May 2021 Board decision. At the January 2021 Board hearing, the Veteran stated that physicians have told him that his upper neuropathy was due to his diabetes but have not stated that it was due to herbicide exposure. He testified that he thought he was having a heart attack due to the pain "up here" but was told that it was his upper extremity neuropathy. The Veteran was afforded a subsequent VA examination for diabetic sensory-motor peripheral neuropathy in November 2021. He endorsed symptoms of numbness and tingling of the upper extremities which presented a "long time ago," had become more frequent and of longer duration, and of problems with his neck and back that he was told contributed to the symptoms. On physical examination, the examiner found that the Veteran had no constant pain, intermittent pain, paresthesias and/or dysesthesias, or numbness symptoms in the bilateral upper extremities. Muscle strength and sensory examination for light touch were normal in the bilateral upper extremities. Deep tendon reflexes were 1+ and position and vibration sense were normal. The radial, median, and ulnar nerves were normal on examination. The examiner noted the findings of the August 2013 EMG report. The only diagnosis was diabetic neuropathy of the bilateral lower extremities. The case was most recently reviewed by a December 2022 VA examiner, a medical doctor, who opined that the Veteran did not have a current diagnosis of a right or left upper extremity neuropathic condition, noting that the diagnoses prior to 2020 were invalid. The examiner reasoned that the 2020 EMG findings, which were the "most sensitive indicator of a neuropathic process," "unequivocally" ruled out a C7/8 (cervical) radiculopathy and diabetic peripheral neuropathy, but did suggest a C5/6 radiculopathy. The examiner pointed out that the Veteran did not satisfy objective criteria for a diagnosis of any neuropathic process of any etiology except for a chronic cervical radiculopathy. The examiner acknowledged that a clinical diagnosis of a neuropathy does not require objective findings and can be treated based on symptoms. However, the examiner emphasized the lack of objective findings at the January 2020 and November 2021 examinations, including the lack of report of symptoms. The examiner also explained that although the Veteran's deep tendon reflexes were reduced in 2021, all other sensory findings of the upper extremities were normal, and as these other sensory findings would be affected before deep tendon reflexes, concluded that the diminished deep tendon reflexes were indicative of the norm for this particular veteran. The examiner further explained that if the minimal changes noted in 2013 were valid, they "would have progressed naturally over the next ensuing seven years" and would have produced both objective examination findings and EMG findings. The examiner further clarified that the only objectively substantiated diagnosis of clinical diabetic neuropathy did not satisfy objective criteria for a diagnosis, based on the "two appropriate electrical studies and to [sic] recent nerve examinations." After a careful review of the evidence, both lay and medical, the Board finds that service connection is not warranted because the first element of service connection has not been met, namely a current disability. In finding so, the Board considered the Veteran's assertions that he has a peripheral neuropathy that is due to diabetes, service, and/or herbicide exposure. The Veteran is competent to report what he witnesses firsthand such as his nerve pain or tingling sensations. However, without the requisite medical training, the Veteran is not competent to diagnose a medical disability or provide a medical opinion as to its etiology as that requires medical expertise that is outside the realm of common knowledge of a layperson. See Kahana at 437 (2011). Therefore, his lay statement that he currently has peripheral neuropathy of the upper extremities is not entitled to any probative weight. To the contrary, the December 2022 VA examiner possesses the requisite medical expertise and training to answer the dispositive questions in this case as he is identified as a medical physician. Moreover, the Board finds that the VA opinion contains clear conclusions with supporting data as well as a well-reasoned and detailed explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based on the evidence of record, including the probative December 2022 VA opinion, the Board concludes that the most persuasive medical evidence shows that the Veteran does not have a current peripheral neuropathy of the right and left upper extremities. The examiner acknowledged the earlier diagnoses of peripheral neuropathy of the upper extremities, to include diabetic peripheral neuropathy, but determined that it was not supported by any objective findings, which included the two recent VA examinations and electrodiagnostic studies. Further, there is no evidence showing that the symptoms reported by the Veteran has resulted in any functional impairment of earning capacity and therefore not indicative of a "disability" for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The probative December 2022 VA medical opinion outweighs the prior unsupported peripheral neuropathy diagnoses relevant to the upper extremities. There is no medical opinion or other evidence of record contrary to the December 2022 opinion. The Board notes further that many of the earlier diagnoses of diabetic peripheral neuropathy prior to 2020 do not specify whether they are referrable to the upper or lower extremities. It may be that the unspecified diagnoses were in reference to peripheral neuropathy of the lower extremities, which is an adjudicated service-connected disability. In any event, no medical examiner has rendered a diagnosis specifically of peripheral neuropathy of the upper extremities. Moreover, although the examiner did note indications of a chronic cervical radiculopathy, service connection for a cervical/neck disorder was previously considered and denied by the RO in September 2020. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131. See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). (Continued on the next page) ? Where, as here, the most probative and persuasive medical evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, without evidence of a current diagnosis of peripheral neuropathy in either upper extremity, there is no basis upon which to award service connection, and discussion of the remaining criteria for service connection, to include the question of etiology is unnecessary. In consideration of the foregoing, the Board finds that the most persuasive evidence is against the claims of service connection for right and left upper extremity peripheral neuropathy, and the benefit-of-the-doubt doctrine is therefore not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appeal is denied. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beach, Julia M. 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.