Back to BVA DecisionsDENIEDSpecial Benefit NO SPECIAL BENEFIT Docket No. 16-33 237
PERIPHERAL NERVE DISORDERS
JAMES L. MARCH · 2021 · Case ID: 21017612
Summary
The veteran, who served on active duty from September 1997 to November 1997, appeals the denial of service connection for nerve disabilities of the right and left upper and lower extremities. The veteran contended that these nerve disabilities were secondary to her service-connected neck and back conditions. The Board reviewed the evidence, including multiple VA examinations conducted in June 2014, November 2019, and October 2020, as well as the veteran's testimony. The VA examiners consistently found that the veteran's peripheral nerve symptoms, diagnosed as diabetic peripheral neuropathy, were less likely than not proximately due to or the result of her service-connected neck or back disabilities. The examiners noted the absence of radiculopathy and suggested alternative etiologies such as arthritis or muscle cramps. The Board found the veteran's lay opinion on the matter to be outside her competence. Ultimately, the Board concluded that the preponderance of the evidence was against the claim, and therefore, the benefit of the doubt doctrine did not apply. Service connection for the nerve disabilities of the bilateral upper and lower extremities was denied.
Rationale
Preponderance of the evidence is against service connection.; Benefit of the doubt doctrine does not apply.
Full Decision Text
Citation Nr: 21017612 Decision Date: 03/25/21 Archive Date: 03/25/21 DOCKET NO. 16-33 237 DATE: March 25, 2021 ORDER Service connection for a nerve disability of the right upper extremity is denied. Service connection for a nerve disability of the left upper extremity is denied. Service connection for a nerve disability of the right lower extremity is denied. Service connection for a nerve disability of the left lower extremity is denied. FINDINGS OF FACT 1. The Veteran’s nerve disability of the right upper extremity is not secondary to service-connected neck or back disabilities and is not otherwise related to an in-service injury or disease. 2. The Veteran’s nerve disability of the left upper extremity is not secondary to service-connected neck or back disabilities and is not otherwise related to an in-service injury or disease. 3. The Veteran’s nerve disability of the right lower extremity is not secondary to service-connected neck or back disabilities and is not otherwise related to an in-service injury or disease. 4. The Veteran’s nerve disability of the left lower extremity is not secondary to service-connected neck or back disabilities and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a nerve disability of the right upper extremity are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a nerve disability of the left upper extremity are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a nerve disability of the right lower extremity are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for a nerve disability of the left lower extremity are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1997 to November 1997. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in October 2019 and September 2020 for further development. Service connection for a nerve disability of the right and left upper and lower extremities is denied. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends that she has a nerve disability of the upper and lower extremities that is secondary to her service-connected neck and back disabilities. Because the Veteran has not raised, and the record does not reasonably raise, the issue of direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. In any event, there is no evidence that a nerve disability is due to disease or injury in service. The question for the Board is whether the Veteran has a current disability that is proximately caused or aggravated beyond its natural progress by her service-connected neck and back disabilities. The Board concludes that, although the Veteran has a current disability manifested by nerve damage to the 7 Vet. App. 439 (1995). The Veteran contends that she has a nerve disability of the upper and lower extremities that is secondary to her service-connected neck and back disabilities. Because the Veteran has not raised, and the record does not reasonably raise, the issue of direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. In any event, there is no evidence that a nerve disability is due to disease or injury in service. The question for the Board is whether the Veteran has a current disability that is proximately caused or aggravated beyond its natural progress by her service-connected neck and back disabilities. The Board concludes that, although the Veteran has a current disability manifested by nerve damage to the bilateral upper and lower disabilities, the preponderance of the evidence is against finding that the Veteran’s nerve disabilities are proximately caused or aggravated beyond its natural progression by a service-connected disability. 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). At the Veteran’s May 2019 Board hearing, she argued that doctors have told her that “everything’s connected.” The Veteran underwent a VA examination in June 2014. The examiner found that the Veteran’s upper and lower peripheral nerve disabilities were less likely than not proximately due to or the result of her service connected back disability. The examiner stated that although the Veteran had some indications of peripheral neuropathy in all of her extremities, she has not been diagnosed with a nerve condition, and the etiology of her symptoms is unclear. She stated that the Veteran’s upper extremity nerve symptoms are not in any way related to her back. She stated that upper extremity peripheral neuropathy is due to impingement of the cervical spine and not the back. She stated that the Veteran’s symptoms are not consistent with cervical radiculopathy, and that the symptoms need further evaluation. She stated that the Veteran’s left leg symptoms “could possibly” be related to sciatic nerve irritation; however, she stated that the symptoms are mild and not entirely consistent with lumbar sacral radiculopathy or sciatica. She further opined that her symptoms could be due to arthritis in the left hip (which is service connected), or muscle cramps. She stated that diagnosis at this point is speculation, and that further evaluation is needed to determine if the Veteran actually has peripheral neuropathy, and if so, what is the etiology. The Veteran underwent another VA examination in November 2019. The examiner noted that the proper diagnosis of the Veteran’s peripheral nerve condition is bilateral upper and lower extremity diabetic peripheral neuropathy. The examiner noted that the Veteran has chronic cervical, thoracic, and lumbar strains which have been formed from an altered gait due to her bilateral knee conditions; however, the examiner stated that the Veteran does not have radiculopathy from her cervical or lumbar spine. She stated that the Veteran was diagnosed with inflammatory poly arthritis from lupus which would have aggravated her multiple joint complaints which started from her knees and have advanced to other joints. In a November 2019 opinion, she stated that it is less likely than not that the Veteran’s bilateral upper and lower extremity nerve condition is proximately due to or the result of her service-connected cervical, thoracic, or lumbar spine disabilities. She explained that the Veteran is a type II diabetic in poor control and has diabetic peripheral neuropathy of both upper and lower extremities. She stated that there is no evidence to suggest that the Veteran has radiculopathy from a neck or back condition. Pursuant to the Board’s September 2020 Remand, the RO obtained another opinion in October 2020 for the purpose of addressing possible aggravation. The examiner opined that it is less likely than not that the Veteran’s service-connected cervical spine and lumbar spine disabilities aggravated her diabetic peripheral neuropathy of the bilateral upper and lower extremities. She explained that the Veteran’s records show that she has diabetic peripheral neuropathy of both upper and lower extremities. She further stated that there is no evidence to suggest that the Veteran has radiculopathy from a neck or back condition. She stated that there is no radiological evidence showing support of the Veteran having radiculopathy. Spinal films do not show conditions that could invoke radicular symptoms. The Veteran believes that her nerve disabilities are secondary to her service-connected neck and back disabilities. She is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran because the record does not show that she has the the Veteran’s records show that she has diabetic peripheral neuropathy of both upper and lower extremities. She further stated that there is no evidence to suggest that the Veteran has radiculopathy from a neck or back condition. She stated that there is no radiological evidence showing support of the Veteran having radiculopathy. Spinal films do not show conditions that could invoke radicular symptoms. The Veteran believes that her nerve disabilities are secondary to her service-connected neck and back disabilities. She is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007);. Consequently, the Board gives more probative weight to the VA examiners. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply, and the claims for service connection for nerve disabilities of the upper and lower extremities must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.