PERIPHERAL NERVE DISORDERS

SHAUN S. SPERANZA · 2024 · Case ID: A24037247

GRANTED

Summary

The Veteran, a Navy Veteran who served from August 1969 to May 1971, including service in Vietnam and aboard the USS Saratoga, appeals the denial of service connection for peripheral neuropathy, skin conditions, respiratory issues, nasal conditions, and headaches. The Board granted service connection for peripheral neuropathy of all four extremities, finding it presumptively service-connected due to Vietnam herbicide exposure, supported by the Veteran's credible testimony of early-onset symptoms. Service connection for skin conditions, including seborrheic keratosis, dermatitis, and actinic keratosis, was granted based on the Veteran's credible lay testimony of in-service jet fuel exposure and subsequent persistent skin irritation, despite a negative VA opinion that the Board found inadequate. The Board also granted service connection for respiratory conditions (chronic bronchitis, sleep apnea) and nasal conditions (allergic rhinitis, sinusitis), finding the Veteran's credible lay testimony regarding in-service jet fuel exposure and subsequent symptoms, along with private medical opinions, established the claims. The respiratory and nasal claims were also supported by secondary service connection to the granted hypertension and allergic rhinitis. Finally, service connection for headaches was granted as secondary to the service-connected tinnitus, based on credible private medical opinion and the principle of benefit of the doubt.

Rationale

Presumptive service connection for early onset peripheral neuropathy under 38 C.F.R. § 3.309(e) for herbicide exposure.; Veteran served in Republic of Vietnam during Vietnam Era.; Competent and credible lay testimony of early onset symptoms within a year of service.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

230918-377646

Full Decision Text

Citation Nr: A24037247
Decision Date: 07/10/24 Archive Date: 07/10/24

DOCKET NO. 230918-377646
DATE: July 10, 2024

ORDER

Service connection for peripheral neuropathy, right upper extremity is granted.

Service connection for peripheral neuropathy, right lower extremity is granted.

Service connection for peripheral neuropathy, left lower extremity is granted.

Service connection for peripheral neuropathy, left upper extremity is granted.

Service connection for a skin disease, including seborrheic keratosis, dermatitis and actinic keratosis, is granted.

Service connection for a nasal disability, including allergic rhinitis and sinusitis, is granted.

Service connection for a respiratory disability, including chronic bronchitis and obstructive sleep apnea, including as secondary to a service-connected disability, is granted.

Service connection for a headaches disability, including as secondary to a service-connected disability, is granted.

FINDINGS OF FACT

1. The Veteran is presumed to have been exposed to herbicide agents in the Republic of Vietnam during the Vietnam Era. The competent and credible evidence shows the Veteran manifested early onset peripheral neuropathy of the bilateral upper and lower extremities to a compensable degree within a year after separation from service.

2. The Veteran's skin disease, including seborrheic keratosis, dermatitis and actinic keratosis, is at least as likely as not related to service.

3. The Veteran's nasal disability, including allergic rhinitis and sinusitis, is at least as likely as not related to service.

4. The Veteran's respiratory disability, including chronic bronchitis and obstructive sleep apnea, is at least as likely as not related to service; and/or proximately due to or aggravated by his service-connected hypertensive disorder and now-service-connected nasal disability.

5. The Veteran's headaches disability is at least as likely as not related to service; and/or proximately due to or aggravated by his service-connected tinnitus.

CONCLUSIONS OF LAW

1. The criteria for met for service connection for peripheral neuropathy, right upper extremity. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. The criteria for met for service connection for peripheral neuropathy, left upper extremity. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

3. The criteria for met for service connection for peripheral neuropathy, right lower extremity. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

4. The criteria for met for service connection for peripheral neuropathy, left lower extremity. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

5. The criteria are met for service connection for a skin disease, including seborrheic keratosis, dermatitis and actinic keratosis. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

6. The criteria are met for service connection for a nasal disability, including allergic rhinitis and sinusitis. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

7. The criteria are met for service connection for a respiratory disability, including chronic bronchitis and obstructive sleep apnea, including as secondary to a service-connected disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307
1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

8. The criteria are met for service connection for a headaches disability, including as secondary to a service-connected disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from August 1969 to May 1971.

This matter comes before the Board of Veterans' Appeals (Board) from determinations by the Agency of Original Jurisdiction (AOJ) on August 1, 2023 and August 7, 2023, under the modernized appeals system known as the Appeals Modernization Act (AMA).

In the September 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. The Veteran and his spouse testified at a Board virtual hearing in May 2024, before the undersigned Veterans Law Judge (VLJ). A transcript is of record.

Therefore, the Board may only consider the evidence of record at the time of the August 2023 AOJ decisions on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. Although 90 days have not yet lapsed after the May 2024 hearing, the Board emphasizes that the present decision is granting all of the Veteran's claims for service connection, so that there is no prejudice to the Veteran.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.? As such the Board has broadly recharacterized the respective rhinitis and sinusitis claims as an issue of entitlement to service connection for a nasal disability, to include allergic rhinitis and chronic sinusitis.?See Clemons v. Shinseki, 23?Vet. App.?1 (2009).? Similarly, the Board has broadly recharacterized the respiratory problems claim and the sleep apnea claim as an issue of entitlement to service connection for a respiratory disability, to include chronic bronchitis and obstructive sleep apnea. Id. Lastly, the Board has broadly recharacterized the skin irritation claim as an issue of entitlement to service connection for a skin disease, to include seborrheic keratosis, dermatitis and actinic keratosis. Id.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.? 38?U.S.C. §?1110; 38?C.F.R. §?3.303(a).? As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence
, to include chronic bronchitis and obstructive sleep apnea. Id. Lastly, the Board has broadly recharacterized the skin irritation claim as an issue of entitlement to service connection for a skin disease, to include seborrheic keratosis, dermatitis and actinic keratosis. Id.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.? 38?U.S.C. §?1110; 38?C.F.R. §?3.303(a).? As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.? Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

1. Service connection for peripheral neuropathy, right upper extremity is granted.

2. Service connection for peripheral neuropathy, right lower extremity is granted.

3. Service connection for peripheral neuropathy, left lower extremity is granted.

4. Service connection for peripheral neuropathy, left upper extremity is granted.

The Veteran contends his peripheral neuropathy of his upper and lower extremities are related to Agent Orange exposure and JP-5 jet fuel exposure during service in the U.S. Navy, in the Vietnam War. See May 2024 Board hearing transcript.

The Board has considered the possibility of presumptive service connection based on herbicide exposure. 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, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a)(6)(iii). Here, the AOJ's August 1, 2023 rating decision favorably found that the Veteran served in the Republic of Vietnam during the Vietnam era, such that he is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307 (a)(6)(iii). The AOJ also favorably found that the Veteran has been diagnosed with current disabilities of peripheral neuropathies of the bilateral upper and lower extremities, per the May 2023 VA examiner.

Early onset peripheral neuropathy is among the listed diseases entitled to presumptive service connection for herbicide exposure under 38 C.F.R. § 3.309 (e). Early onset peripheral neuropathy must have become manifest to a compensable 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).

Here, the Veteran testified that he experienced numbness in his legs after returning home from service in the Navy, and his neuropathy symptoms have persisted to this day. See Board hearing transcript, at 7. He added that within three to six months after he separated, he started feeling burning symptoms on the top of his legs and numbness in his hands. See Board hearing transcript, at 22-24. The Veteran's competent statements are credible and constitute probative evidence demonstrating the Veteran developed symptomatology of the extremities within a year after service, which was later diagnosed as peripheral neuropathy.

Accordingly, the probative evidence weighs in favor of the claim and establishes early-onset peripheral neuropathy for the purposes of 38 C.F.R. §§ 3.307, 3.309(e). Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities is therefore warranted on a presumptive basis.

5. Service connection for a skin disease, including seborrheic keratosis, dermatitis and actinic keratosis, is granted.

The Veteran contends he developed a skin condition due to excessive exposure to jet fuel, while serving aboard the USS Saratoga. Notably, his service personnel records document service aboard the USS Shangri-La as a JP-5 System Operating Supervisor from April 1970 to November 1970, during combat operations, with duties in aviation fueling systems and aircraft refueling. Moreover, the AOJ favorably found the Veteran was exposed during service to JP-5 jet fuel, as well as Agent Orange exposure.

The AOJ also favorably found a current disability to account for the Veteran's claim of skin irritation, referencing the July 2023 VA skin disease examiner's diagnosis of seborrheic keratosis. In addition, in May 2023, another VA skin
to excessive exposure to jet fuel, while serving aboard the USS Saratoga. Notably, his service personnel records document service aboard the USS Shangri-La as a JP-5 System Operating Supervisor from April 1970 to November 1970, during combat operations, with duties in aviation fueling systems and aircraft refueling. Moreover, the AOJ favorably found the Veteran was exposed during service to JP-5 jet fuel, as well as Agent Orange exposure.

The AOJ also favorably found a current disability to account for the Veteran's claim of skin irritation, referencing the July 2023 VA skin disease examiner's diagnosis of seborrheic keratosis. In addition, in May 2023, another VA skin disease examiner diagnosed dermatitis and actinic keratosis. Importantly, none of the Veteran's diagnosed skin diseases are not listed as diseases associated with herbicide exposure under 38 C.F.R. § 3.309 (e). However, governing regulations allow the Veteran to establish service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (1994).

In this case, the Veteran testified that even during service, his regular exposure to jet fuel resulted in blisters on his hands, scaly skin, and experiencing skin irritation symptoms since then. See Board hearing transcript, at 21-22.

Although his service treatment records were silent for treatment of skin problems, the Board finds his statements to be competent, credible, and probative evidence weighing in support of finding an in-service onset of skin disease and a continuity of skin problems since service. 38 C.F.R. § 3.159 (a)(2); see Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection); and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence).

In contrast, a July 2023 VA examiner provided a negative medical opinion on the possibility that his skin irritation disability was due to exposure to Agent Orange and exposure to jet fuel, based on a lack of supporting medical literature relating seborrheic keratosis to such exposures. However, the opinion was inadequate, for not considering his other skin disease diagnoses, and for not considering the Veteran's competent lay statements on onset and history of his skin symptoms since service. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (addressing a veteran's lay reports of symptomatology is required when considering their prior medical history); see also Buchanan v. Nicholson, 415 F.3d 1331, 1337 (2006). Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thus, the Board assigns this negative opinion no probative value against the claim.

The Board resolves all reasonable doubt in favor of the Veteran and finds that the evidence is at least in equipoise. As such, service connection for the Veteran's skin disease is warranted. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102.

6. Service connection for a respiratory disability, including chronic bronchitis and obstructive sleep apnea (OSA), is granted.

7. Service connection for a nasal disability, including allergic rhinitis and sinusitis, is granted.

The Veteran contends he developed a respiratory disability, including sleep apnea, and nasal disabilities of rhinitis and sinusitis, due to excessive exposure to jet fuel, while serving aboard the USS Saratoga.

The Veteran has a current respiratory disability. The May 2023 VA examiner diagnosed both chronic bronchitis and obstructive sleep apnea, referencing a July 2010 private sleep study.

The AOJ favorably found the Veteran has current sinusitis and rhinitis disabilities. The July 2023 VA examiner diagnosed chronic sinusitis and allergic rhinitis.

The Veteran has a current respiratory disability. The May 2023 VA examiner diagnosed both chronic bronchitis and obstructive sleep apnea, referencing a July 2010 private sleep study.

The AOJ favorably found the Veteran has current sinusitis and rhinitis disabilities. The July 2023 VA examiner diagnosed chronic sinusitis and allergic rhinitis.

The Veteran's current spouse, T.W., testified that during their 44 years of marriage (so dating back to approximately 1980, or 10 years after service), he has always had a postnasal drip, loud snoring, and poor sleeping habits. See, e.g., Board hearing transcript, at 25. His spouse also reported on a history of shortness of breath. See also T.W.'s March 2023 statement. Further, his former spouse corroborated that after coming home from Vietnam in 1970, the Veteran would stop breathing and he had to be shaken to get him breathing again, sometimes he would gasp for breath in his sleep, and his snoring was so loud and constant that they slept in separate rooms and his snoring would wake their baby. See May 2024 statement by R.L.

Although his service treatment records were silent for treatment of respiratory and nasal problems, the Board finds his statements to be competent, credible, and probative evidence weighing in support of finding an in-service onset and continuity of respiratory and nasal symptoms since service. 38 C.F.R. § 3.159 (a)(2); see Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection); and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence).

Although the Veteran's service treatment records are unremarkable for treatment of a respiratory disability, the AOJ has favorably found in-service exposure to JP-5 jet fuel. The Board acknowledges that a July 2023 VA examiner provided a negative medical opinion on the possibility that his disabilities were due to exposure to Agent Orange and exposure to jet fuel. However, the opinion was inadequate, for not considering the Veteran's competent lay statements on onset and history of his symptoms since service. Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. Thus, the Board assigns this negative opinion no probative value against the claim.

On the other hand, there is positive probative medical opinion evidence in support to the respiratory and nasal disability claims. A May 2024 opinion report by A.T., a private Certified Physician Assistant (PA-C), found that his respiratory conditions, including chronic bronchitis and sleep apnea, are at least as likely as not caused by his in-service exposure to JP-5 jet fuel. In forming this opinion, A.T. expressly relied upon review of the Veteran's medical records, reported symptoms, and review of the relevant medical literature, noting that JP-5 jet fuel exposure can exacerbate or lead to the development of sleep apnea and chronic bronchitis through several pathophysiological mechanisms.

Moreover, a June 2024 opinion report by J.G., PA-C, found that it is more likely than not that the Veteran's fuel exposure during service contributed to, exacerbated, and/or complicates the treatment of his allergic rhinitis. J.G. noted review of the Veteran's medical records and medical history, and discussed the relevant medical literature, in forming medical opinions in support of the claims.

Lastly, J.G. added that, in turn, it is at least as likely as not that his allergic rhinitis (which is now granted service connection) and service-connected hypertension contributes to, exacerbates, and/or complicates the treatment of his sleep apnea. In this regard, the Board observes the Veteran is service-connected for hypertensive disorder. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Thus, this is probative evidence in support of the notion of secondary service connection for the respiratory disability.

Thus, the Board finds the private opinions by A.T. and J.G. are adequate and highly probative evidence in support of the claims. See Nieves-Rodriguez, 22 Vet. App. at 295 ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a
the Veteran is service-connected for hypertensive disorder. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Thus, this is probative evidence in support of the notion of secondary service connection for the respiratory disability.

For the above reasons, the probative evidence weighs in favor of the claim and service connection for the Veteran's respiratory and nasal disabilities is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

8. Service connection for a headaches disability is granted.

The Veteran contends he developed headaches due to excessive exposure to jet fuel, while serving aboard the USS Saratoga, and/or due to his service-connected tinnitus.

The AOJ favorably found that the Veteran has a current headaches disability. The May 2023 VA examiner diagnosed tension headaches.

The Veteran's tinnitus is a service-connected disability. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310.

The Veteran submitted medical literature on a relationship between his headaches and tinnitus, which is evidence in support of the claim, albeit of limited probative value due to its generalized principles, without comment on the facts of this case.

Further, a May 2024 opinion report by A.T., a private Certified Physician Assistant (PA-C), found that his tension headaches are at least as likely as not caused by his service-connected tinnitus. A.T. expressly relied upon review of the Veteran's medical records, reported symptoms, and review of the relevant medical literature, noting a pathophysiological link between tension headaches and tinnitus. Thus, the Board finds the private opinion is highly probative evidence weighing in support of the claim. See Nieves-Rodriguez, 22 Vet. App. at 295 ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.").

The Board finds the evidence supporting secondary service connection is at least in approximate balance. Resolving the benefit of the doubt in favor of the Veteran, service connection for tension headaches, as secondary to the service-connected tinnitus, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

SHAUN S. SPERANZA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Chatterjee, B.

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.

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