Citation Nr: 0722441 Decision Date: 07/24/07 Archive Date: 08/02/07 DOCKET NO. 04-08 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for peripheral neuropathy involving each extremity, to include due to in- service herbicide exposure, without regard to the presence or absence of diabetes mellitus, to include diabetic peripheral neuropathy. 2. Entitlement to service connection for peripheral neuropathy involving each extremity, secondary to diabetes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. Preston, Associate Counsel INTRODUCTION The veteran served on active duty from July 1968 to June 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The record raises the issues of entitlement to service connection for diabetes mellitus, and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). These issues, however, are not currently developed or certified for appellate review. Accordingly, these matters are referred to the RO for appropriate consideration. For the reasons outlined below, this appeal is REMANDED, in part, to the RO via the Appeals Management Center (AMC), in Washington, DC. Consistent with the instructions below, VA will notify you of the further action that is required on your part. FINDING OF FACT Without addressing entitlement to service connection for peripheral neuropathy due to diabetes, the preponderance of the evidence is against finding that upper and lower extremity peripheral neuropathy is related to service. CONCLUSION OF LAW Without addressing entitlement to service connection for peripheral neuropathy due to diabetes, peripheral neuropathy of the upper and lower extremities was not incurred in or aggravated during service, and is otherwise unrelated to the veteran's active duty. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends that his upper and lower extremity peripheral neuropathy is related to service. The Board disagrees. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be warranted 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). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) 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. The list of diseases includes acute and subacute peripheral neuropathy. 38 C.F.R. § 3.309(e). Acute and subacute peripheral neuropathy is presumed service incurred if manifested to a degree of 10 percent or more within a year after the last date of exposure to an herbicide agent during active duty. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). For purposes of this section, the term "acute and subacute peripheral neuropathy" means transit peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309 (e), Note 2. The Secretary of VA has determined, based on a National Academy of Science report issued in January 2003, that there is no positive association between exposure to herbicides and any peripheral neuropathy manifested during some other time frame than indicated above, or any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 68 Fed. Reg. 27,630- 41 (May 20, 2003). The appellant is not precluded, however, from proving that any peripheral neuropathy manifested during some other time frame resulted from exposure to herbicides in service under the provisions of 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(d). Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) In this case, the service medical records reveal no complaints or findings pertaining to peripheral neuropathy. A review of post-service private and VA medical records reveals no opinion linking any peripheral neuropathy to service. These medical records also do not reveal competent evidence of any peripheral neuropathy during the appellant's active duty or for many years thereafter. The earliest evidence of record of peripheral neuropathy is an April 2002 VA treatment document for an unrelated condition, which recorded a history of pertinent complaints beginning in 1999. The appellant's neuropathy has continued since. VA treatment records from October 2002 and September 2003 included physician speculation that peripheral neuropathy "possibly" is or "may be" related to the veteran's Agent Orange exposure. See Bostain v. West, 11 Vet. App. 124, 127- 28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by physician is too speculative). A January 2003 VA treatment record includes a physician's statement that the onset of veteran's peripheral neuropathy in 2000 was "probably reflect[ed]" Agent Orange exposure. As noted above, peripheral neuropathy that fails to manifest within a year after the last date of exposure to an herbicide agent during active duty is not subject to presumptive service connection on an herbicide basis. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). Although the January 2003 VA physician's nexus opinion favors the claim, this opinion, contrary to the extensive study prepared by the National Academy of Science, is not sustained by any reasons, bases or empirical epidemiological evidence supporting service connection for such a late-onset peripheral neuropathy. The Board has reviewed all VA treatment records from April 2002 to February 2004, as well as an April 2001 private physician's medical record. The overwhelming preponderance of the medical evidence is against finding a link between the veteran's peripheral neuropathy and his in-service herbicide exposure. Moreover, while there is evidence of a current peripheral neuropathy of the upper and lower extremities, without probative evidence linking peripheral neuropathy to service, the benefit sought on appeal cannot be granted. The claim is denied. The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in March 2003 and January 2004 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and notice of what part VA will attempt to obtain. VA informed the claimant of the need to submit all pertinent evidence in his possession, and provided adequate notice of how disability ratings and effective dates are assigned. While the appellant may not have received full notice prior to the initial decision, after notice was provided the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and the claim was readjudicated. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The claimant was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. ORDER Without addressing the issue of entitlement to service connection for peripheral neuropathy due to diabetes, entitlement to service connection for peripheral neuropathy of the upper and lower extremities is denied. REMAND As noted above, this case raises the issue of entitlement to service connection for diabetes mellitus. In this context, a January 2003 VA outpatient clinic note specifically directs that the appellant be tested for diabetes mellitus in light of his in-service herbicide exposure. As such, the theory of entitlement to service connection for peripheral neuropathy, based on diabetic peripheral neuropathy of each extremity, has been raised. As the records before the Board do not document that the appellant has been tested for diabetes mellitus or for diabetic peripheral neuropathy, further development is in order. Therefore, this case is REMANDED for the following action: 1. The RO must send the appellant a corrective VCAA notice under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2006) that is consistent with Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. Thereafter, the veteran should be afforded a VA examination to determine whether the appellant has diabetes, and in turn, whether he has diabetic peripheral neuropathy. The claims folder must be made available to the examiner for review prior to any examination. In accordance with the latest AMIE worksheet for diabetes and diabetic peripheral neuropathy, the examiner is to provide a detailed review of the history, current complaints, and the nature and etiology of any diagnosed diabetes and diabetic peripheral neuropathy. All applicable diagnoses must be fully set forth. 3. Thereafter, the RO is to readjudicate the appealed issue. If the claim is denied in any respect, the RO must issue a SSOC to the veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until he is notified. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs