Citation Nr: 0307119 Decision Date: 04/14/03 Archive Date: 04/24/03 DOCKET NO. 98-00 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for acute and subacute peripheral neuropathy due to exposure to herbicide agents (Agent Orange). 2. Entitlement to service connection for axonal neuropathy due to exposure to herbicide agents. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Leonard J. Vecchiollo INTRODUCTION The veteran had active service from November 1964 to November 1967. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 1997 rating decision by a regional office (RO) of the Department of Veterans Affairs (VA). The Board remanded the claim for further development in October 1999. Additionally, the Board undertook additional development pursuant to authority granted by 38 C.F.R. § 19.9(a)(2)-requesting an opinion of the VA Chief Public Health and Environmental Hazards Officer in February 2003. FINDINGS OF FACT 1. All available evidence and information necessary for an equitable disposition of the veteran's appeals has been obtained. 2. The veteran had active service in the Republic of Vietnam during the Vietnam era. 3. The veteran has not been diagnosed with any disease recognized by VA as being etiologically related to claimed exposure to herbicide agents used in the Republic of Vietnam. 4. Competent medical evidence has been submitted indicating that it is at least as likely as not that the veteran has chronic peripheral neuropathy due to exposure to herbicide agents. 5. There is no medical evidence of record, however, indicating the veteran has acute and subacute peripheral neuropathy, or axonal neuropathy, due to exposure to herbicide agents. CONCLUSIONS OF LAW 1. The veteran does not have acute and subacute peripheral neuropathy or axonal neuropathy as a result of a disease or injury incurred during service, including exposure to herbicide agents. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.307, 3.309 (2002) 2. The veteran has chronic peripheral neuropathy as a result of in-service exposure to herbicide agents. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 During the pendency of the claim, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In addition, regulations implementing the VCAA are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2002). The Board will assume for the purpose of this decision that the liberalizing provisions of the VCAA and the implementing regulations, to include the notice and duty to assist provisions, are applicable to the issue on appeal. The Act and the implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well-grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103(a); see also Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). In February 2001, the RO sent a letter to the veteran specifically informing him of the evidence and information necessary to substantiate his claims, the information and evidence that he should submit and the assistance that VA would provide in obtaining evidence and information in support of his claim. Therefore, the Board is satisfied that the RO has complied with the notification requirements of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran maintains that his peripheral neuropathy is due to his exposure to Agent Orange while in Vietnam. He says his complaints of painful ankle and leg cramps, documented in his service medical records (SMRs), were the first manifestations of peripheral neuropathy and that he has suffered from this condition continuously since service. He acknowledges there are other putative causes of his peripheral neuropathy contained in the record, so he has requested an examination, testing and an opinion to resolve this issue. The veteran's service medical records indicate that he underwent bilateral varicose vein surgery in December 1964. He complained of pain in both ankles while exercising which the examiner noted was probably normal as the veteran was returning from exercising after surgery. In March 1965, the veteran complained of left leg cramping and ankle problems. The examiner noted that the veteran was recently removed from physical profile due to varicose vein surgery. In a neurological consultation dated in August 1995, R. Guarino, M.D., stated that the veteran had an idiopathic, sensory neuropathy. In a letter dated in September 1995, the veteran's private physician, Colin D. Hall, M.D., stated that the veteran had peripheral neuropathy of the lower extremities, most likely a hereditary, primarily sensory neuropathy. In a January 1996 letter, Dr. Hall stated that a biopsy of the sural nerve indicated a mild axonal neuropathy compatible with a hereditary neuropathy not the result of taking Colchicines. In a letter dated in June 1997, Dr. Hall stated that he was still at a loss to determine the etiology of the veteran's peripheral neuropathy. He noted that Agent Orange certainly would not be a compatible etiology based on the literature. He also noted that Agent Orange exposure is related to the subsequent development of porphyria, and that further testing should be accomplished. An April 1998 electromyogram (EMG) noted evidence of sensorimotor peripheral neuropathy, with mostly axonal features, much worse in the legs than arms. In a disability determination evaluation dated in March 1999, William L. Brown, M.D., stated that the veteran had a severe peripheral neuropathy, involving pain, light touch, temperature and vibratory sensation. Pursuant to Board development, an opinion of the VA Chief Public Health and Environmental Hazards Officer, Susan Mather M.D., M.P.H., was obtained. Dr. Mather stated that the veteran's findings appear to support a diagnosis chronic persistent peripheral neuropathy, as opposed to acute or subacute transient peripheral neuropathy, as defined by VA Agent Orange regulations. Dr. Mather noted that the National Academy of Sciences, after an extensive review of the pertinent scientific and medical literature pertinent to herbicides used in Vietnam, concluded that evidence of an association between herbicides used in Vietnam and chronic persistent peripheral neuropathy was inadequate or insufficient. Therefore, Dr. Mather concluded that it was not at least as likely as not that herbicides were the cause of the veteran's chronic peripheral neuropathy. Dr. Mather also stated that the onset of the veteran's peripheral neuropathy was unclear from an examination of the record ranging from the 1970's to the 1990's. The veteran contended that his complaints of painful ankle and leg cramps contained in his service medical records were the first prodromal manifestation of peripheral neuropathy, and that he has suffered from this condition continuously since service. Other medical records suggest that the onset of the peripheral neuropathy was in the 1990's. Dr. Mather also stated that she was in agreement with the neurologists who have examined the veteran. In a letter dated in March 2003, the Chief of the Neurology Section of the Durham, North Carolina, VA Medical Center (VAMC), stated that the veteran's peripheral neuropathy may have started as long as 30 years ago and is characterized by pain and numbness. He also noted that either the veteran's glucose intolerance or exposure to Agent Orange caused his peripheral neuropathy. The examiner noted that the peripheral neuropathy was distal, symmetric, and sensory (greater than motor and axonal) in nature. The examiner also stated that an ingredient in Agent Orange, dioxin, can cause a slowly progressive distal symmetric, and sensory (greater than motor and axonal) neuropathy. He concluded that it was at least as likely as not that toxic exposure to Agent Orange, as opposed to glucose intolerance, caused the veteran's peripheral neuropathy. Service connection may be granted when the veteran has a disability as the result of a disease or injury incurred or aggravated during service that is not the result of his own willful misconduct. 38 U.S.C.A. § 1110. If an organic disease of the nervous system is not diagnosed during service, but is present to a compensable degree within one year following separation from service, service connection is still permissible on a presumptive basis. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption, however, is rebuttable by probative evidence to the contrary. Having served in the Republic of Vietnam during the Vietnam era, the veteran is presumed to have been exposed to an herbicide agent (Agent Orange). See 38 U.S.C.A. § 1116(f). The Board notes that a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during such period of service. 38 C.F.R. § 3.307(a). The Secretary has determined that there was no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted. 59 Fed. Reg. 57,589 (1996) (codified at 38 C.F.R. §§ 3.307, 3.309). Acute and subacute peripheral neuropathy are diseases associated with herbicide exposure. 38 C.F.R. § 3.309(e). But as acute and subacute peripheral neuropathy has never been diagnosed, service connection for this presumptive condition is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110 (formerly § 310). In the absence of proof of present disability there can be no valid claim. Degmetich v. Brown, 104 F.3d 1328 (1997) (Interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). See also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). That, however, notwithstanding, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing his entitlement to service connection in these types of situations so long as there is proof of actual direct causation. Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000); Combee v. Brown, 34 F.3d 1039 (1994). But competent medical evidence is required where, as here, the determinative issue involves medical causation. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Giving the veteran the benefit-of-the-doubt, then, since a VA neurologist has concluded that the veteran's chronic peripheral neuropathy was caused by exposure to Agent Orange, service connection for chronic peripheral neuropathy is warranted. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence, however, is against the claims for service connection for acute and subacute peripheral neuropathy, and axonal neuropathy, since there is no evidence that the veteran currently has these conditions. Thus, the benefit-of-the-doubt rule does not apply, and these claims must be denied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for chronic peripheral neuropathy is granted. Service connection for acute and subacute peripheral neuropathy, and for axonal neuropathy, is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.