Citation Nr: 9813633 Decision Date: 04/30/98 Archive Date: 05/08/98 DOCKET NO. 97-09 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for peripheral neuropathy secondary to exposure to herbicides REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Associate Counsel INTRODUCTION The veteran served on active duty from October 1969 to January 1972. This appeal arises from a December 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, that denied a claim for service connection for peripheral neuropathy secondary to exposure to herbicides. The veteran has appealed to the Board of Veterans' Appeals (Board) for service connection for peripheral neuropathy secondary to exposure to herbicides. The veteran submitted a notice of disagreement in February 1997. The RO issued a statement of the case and received the veteran's substantive appeal in March 1997. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has peripheral neuropathy caused by exposure to herbicides in Vietnam; he requests service connection for peripheral neuropathy secondary to exposure to herbicides. DECISION OF THE BOARD It is the decision of the Board that the claim for service connection for peripheral neuropathy secondary to exposure to herbicides is not well grounded. FINDINGS OF FACT 1. Service connection is in effect for neuritis of the right ulnar and median nerves. 2. The veteran has not submitted competent evidence of a current diagnosis of acute or subacute peripheral neuropathy; thus the claim for service connection for peripheral neuropathy secondary to exposure to herbicides is not plausible. CONCLUSION OF LAW The claim for service connection for peripheral neuropathy secondary to exposure to herbicides is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran served on active duty from October 1969 to January 1972. According to his service records, he served in Vietnam from November 1969 to January 1970. The veteran's service medical records show that he underwent an induction examination in August 1968 and the report is negative for right arm abnormalities. An October 1969 treatment report from Schofield, Hawaii, notes a slight infection of the right forearm and that a pustule was lanced and treated with peroxide wash and Bacitracin dressing. In November 1969, shortly after arriving in Vietnam, the veteran complained of loss of feeling in the right forearm in the area of a prior nerve block. The diagnosis was injury to the ulnar nerve. A subsequent November 1969 report notes numbness of ulnar nerve distribution in the right forearm. The impression was paresthesia of unknown or questionable etiology. The veteran was referred for consultation and an examiner noted that the veteran had complained of numbness of the right ulnar nerve distribution that gradually worsened since "local injection for I and D (incision and drainage) in October." The examiner also noted that the veteran had probably had Xylocaine injected into the sheath of the ulnar nerve, which should resolve. The veteran was referred to neurosurgery. A December 1969 treatment report notes numbness due to right ulnar nerve and that evacuation to Japan was recommended. According to March 1970 treatment reports from Ft. Hood, Texas, the right arm had no feeling from the little finger to the elbow. The examiner noted "EMG (Electromyograph) apparently showed nerve damage." Further neurology examination was recommended. A consultation report notes that a boil was lanced in October 1969 in Hawaii. An area of numbness began one week after that and gradually progressed. The veteran went to Vietnam where he was transferred to Japan because of increased symptoms. The examiner currently found weakness of the hand with minimal jerking and no atrophy present. Deep tendon reflexes were equal. There was sensory loss over the upper ulnar region from the forearm to the fingers. There was no abscess or Tinel's sign. The impression was ulnar sensory neuropathy. A June 1970 report notes that EMG and nerve conduction studies were normal. The examiner felt that time would probably diminish the symptoms. A December 1971 separation examination report notes right arm ulnar sensory nerve damage. In January 1972 the veteran submitted a claim for service connection for nerve damage to the right arm and for other disorders. He underwent VA examination in April and May 1972. The examiner noted the veteran's history of an abscess on the ulnar border of the proximal right forearm. The examiner noted that the abscess had been drained and about eight weeks after incision there was numbness in the veteran's right little and ring fingers. Because the numbness occurred in Vietnam, the veteran was returned to the United States and hospitalized where a diagnosis of ulnar sensory neuropathy was made. Upon current examination, the examiner found a crusted lesion on the proximal ulnar border of the forearm. There was no surgical scar. There was full range of normal motion in both upper extremities. The biceps, triceps, and periosteal radial reflexes were intact although the right triceps reflex was weak. There was full range of normal painless neck motion. The grip of the right (major) hand was 114 compared to 130 on the left. The blotter and pinch test for ulnar nerve function was normal in the right hand. There was decreased sensation along the ulnar border of the right forearm and in the little and ring fingers of the right hand. The diagnosis was sensory ulnar neuritis of unknown etiology and origin. The veteran was referred to neurology for consultation. A general neurological examination was within normal limits; however, there was a region of decreased sensation to pinprick over the distribution of the ulnar nerve and medial cutaneous nerve of the right forearm. There was also some weakness when abducting and adducting the right little finger and some general weakness of abduction and adduction of the fingers. Strength in these movements was estimated at 75 percent of the opposite side. The diagnosis was right ulnar and medial cutaneous nerve neuropathy. By RO rating decision of August 1972, service connection was established for neuritis of the right ulnar and median nerves and a 10 percent rating was assigned. The veteran underwent a VA neurological examination in January 1974. The report was essentially normal except for a strip of hypalgesia on the medial side of the right forearm involving the ulnar aspect of the right hand and the ulnar two digits. Mild sensory neuropathy related to the right ulnar nerve was suggested. There was no clinical evidence of any motor neuropathy related to the right ulnar nerve. In March 1987 the Board denied a claim for service connection for residuals of exposure to Agent Orange, to include liver disease, gallstones, and a skin disorder. The skin disorder claim stemmed from reported blistering of the veteran's hands. Neuropathy of the right forearm was not mentioned. In August 1996 the RO informed the veteran that, due to changes in regulations pertaining to service connection for herbicide exposure, acute and subacute peripheral neuropathy might be related to military service. In September 1996 the veteran submitted a claim for service connection for acute and subacute peripheral neuropathy based on exposure to herbicides. In December 1996 the RO received VA treatment records noting treatment at various times between 1977 and 1986. The reports noted treatment for a variety of complaints including hepatobiliary disease and back pain. There was no evidence of acute or subacute peripheral neuropathy. In September 1997 the veteran submitted a duplicate copy of his December 1971 separation examination report. II. Legal Analysis Acute and subacute peripheral neuropathy are subject to presumptive service connection if manifested to a degree of 10 percent within a year after the last date on which the veteran was exposed to a herbicide agent during active military, naval, or air service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (1997). The threshold issue is whether the veteran has presented a well grounded claim for service connection for acute and sub acute peripheral neuropathy secondary to exposure to herbicides. In a claim for service connection, the veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded, meaning plausible. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The claim must be accompanied by supporting evidence; an allegation is not enough. Grottveit v. Brown, 5 Vet. App. 91,93 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In Caluza v. Brown, 7 Vet. App. 498 (1995), the United States Court of Veterans Appeals outlined a three-prong test to established whether a claim for service connection is well grounded. The Court stated that for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (medical evidence or, in some circumstances, lay evidence), and of a nexus between the in- service injury or disease and the current disability (medical evidence). The medical records show that ulnar and median sensory neuritis followed treatment for a right forearm abscess. The abscess was manifested prior to entering Vietnam and the claims file shows that service connection is already in effect for this disability. Moreover, no medical diagnosis of acute and/or subacute peripheral neuropathy has been made in this case. There must be competent evidence of a current disability (a medical diagnosis) in order for the claim to be well grounded. Caluza, id. Hence the claim for service connection for acute and subacute neuropathy is not plausible and must be denied as not well grounded. The veteran is advised that he may refile his claim for service connection for acute and subacute peripheral neuropathy at anytime by notifying the RO of such intention and submitting medical evidence of a current diagnosis of acute and/or subacute peripheral neuropathy together with medical evidence that tends to link the condition to an incident of service or show that it was manifested to a degree of 10 percent within a year of exposure to herbicide agents in Vietnam. Robinette v. Brown, 8 Vet. App. 69 (1995). ORDER The claim for service connection for neuropathy secondary to exposure to herbicides is denied as not well grounded. J. E. Day Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -