Citation Nr: 9837783 Decision Date: 12/29/98 Archive Date: 01/05/99 DOCKET NO. 97-13 337A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for peripheral neuropathy as a result of exposure to Agent Orange. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Orfanoudis, Associate Counsel INTRODUCTION The veteran had active service from January 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to service connection for chronic idiopathic peripheral neuropathy. The veteran filed a timely notice of disagreement and perfected a substantive appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has generalized weakness, pain and an inability to walk as a result of his idiopathic peripheral neuropathy, due to exposure to Agent Orange in Vietnam. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual that his claim of entitlement to service connection for chronic idiopathic peripheral neuropathy is well grounded. FINDINGS OF FACT 1. All of the relevant evidence necessary for an equitable disposition of the veteran's appeal for service connection for chronic idiopathic peripheral neuropathy has been obtained. 2. There is no competent medical evidence which establishes a nexus between peripheral neuropathy, diagnosed many years following service, to active duty, to include exposure to Agent Orange. CONCLUSION OF LAW The claim for entitlement to service connection for peripheral neuropathy is not well grounded. 38 U.S.C.A. 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question that must be resolved with respect to the veteran’s claim of entitlement to service connection is whether he has submitted a well-grounded claim for the benefits arising therefrom. 38 U.S.C.A. § 5107(a). Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. A well-grounded claim is a plausible claim, one that is meritorious on its own or capable of substantiation. Robinette v. Brown, 8 Vet.App. 69, 73-74 (1995); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The truthfulness of evidence is presumed for purposes of determining if a claim is well grounded. Robinette, 8 Vet.App. at 75-76; King v. Brown, 5 Vet.App. 19, 21 (1993). The United States Court of Veterans Appeals (Court) has held that in order to be a well- grounded claim, there must be competent evidence of a current disability (a medical diagnosis); incurrence or aggravation of a disease or injury in service (lay or medical evidence); and a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498 (1995). If the claimant has not presented a well-grounded claim, then the appeal fails as to that claim, and the Board is under no duty pursuant to 38 U.S.C.A. § 5107(a) to assist the claimant any further in the development of that claim. Murphy, 1 Vet.App. at 81. Compensation is payable to a veteran for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 1991). In addition, certain diseases, such as an organic disease of the nervous system, when manifest to a degree of 10 percent or more within one year after the veteran's military service, will be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1998). If a veteran was exposed to an herbicide agent during active military, naval or air service, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6) (1998) 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) (1998) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin’s disease; Non- Hodgkin’s lymphoma; acute and subacute peripheral neuropathy; PCT; prostate cancer; multiple myeloma; respiratory cancers (cancers of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (1998). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne, PCT, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within one year, and respiratory cancers within 30 years, 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)(6)(ii) (1998). The service medical records reflect no complaint or finding of a neuromuscular disorder, to include peripheral neuropathy or primary lateral sclerosis. A private medical record dated in February 1992 reveals that the veteran had been treated for the prior two years for chronic idiopathic neuropathy of the legs. The physician noted that the veteran was taking multiple medications for pain control and that he was limited in his ability to walk due to pain and weakness. The veteran underwent a VA compensation examination in May 1992. He reported progressive sensation of weakness in the legs, aching sensation primarily from the knees distally, intermittent numbness and tingling, and nocturnal jerking of the legs. He indicated that the intermittent jerking of the legs and nocturnal jerking of the legs has been occurring since 1970 and is basically unchanged. He indicated that his other complaints began around 1976 or 1977 and have progressively worsened, characterized by coldness, weakness of the legs in both proximal and distal distributions. The veteran also reported an aching sensation in the lower portion of the leg and intermittent radicular pain to the groin area bilaterally. He also had intermittent sensation of numbness and tingling usually from the knees distally, occasionally involving the upper legs. The aching sensation was most prominent and tended to outlast the paresthesias. He denied any bowel or bladder symptoms, leg cramps or gross fasciculations. His symptoms were slightly more prominent on the right compared to the left. He also had a three-month history of intermittent aching low back pain. The examiner provided an impression of a suggestion of possible L5-S1 radiculopathy on the left, with a possibility of lumbar stenosis. The veteran underwent a VA electromyogram and nerve conduction studies in June 1992. The veteran presented with constant aching in both legs, from the hips to the ankles of several years’ duration, which he reported to be worsening. He reported weakness in both legs, which is marked in the mornings and which has resulted in his falling on occasion in the mornings. He indicated that he is unable to sleep at night because of constant shaking and movement in his legs and that he has been diagnosed, in the past, with restless leg syndrome. He also reported intermittent pain along the lateral aspect of both legs, along with constant numbness and tingling in his distal thighs, and numbness of both feet. The findings were interpreted as revealing no evidence of left or right lumbar or sacral radiculopathy. The veteran was awarded disability benefits by the Social Security Administration in May 1995. The decision reflects that the medical evidence disclosed that the veteran developed diffuse leg and back pain in 1991. It was determined that the veteran was disabled due to distal polyneuropathy secondary to possible primary lateral sclerosis. The veteran has submitted private medical records dated from December 1992 to September 1995 which show treatment for multiple neuromuscular complaints and symptoms. The veteran assessments included low back and leg pain, leg symptoms of unclear symptomatology and certainly etiology, possible fibrositis/fibromyalgia, chronic primary lateral sclerosis, possible progressing primary lateral sclerosis; and occipital neuralgia. A private medical record dated in September 1996 reveals that the veteran has been treated since December 1992 with a diagnosis of peripheral neuropathy and was considered to be totally disabled. The veteran underwent a VA Agent Orange examination in September 1996. The report indicated that the veteran was diagnosed with peripheral neuropathy in 1992. He indicated that he had service in the Republic of Vietnam wherein he was frequently in the jungle and was, on at least three or four occasions, sprayed over head by Agent Orange defoliant. The veteran indicated that he had persistent chronic backache which had become worse since he experienced spasticity, tremor, and peripheral neuropathy. He indicated that he has intermittent joint pain, stiffness, and joint swelling in his lower extremities, and an increasing worsening muscle weakness. The impression was that the veteran with peripheral neuropathy as of 1992 which has incapacitated the veteran to a wheelchair. The examiner stated that there was no evidence of any other medical condition at this time, which may be attributable to Agent Orange exposure aside from his neuropathy. Private medical records dated from February 1996 to February 1997. The February 1997 examination report contains an assessment of primary lateral sclerosis due to spastic paraparesis of uncertain etiology. The veteran asserts that his exposure to Agent Orange while in Vietnam resulted in the development of his chronic idiopathic peripheral neuropathy. The record reflects that veteran served in Vietnam, so service connection for certain disabilities could be granted presumptively based on such service with presumed exposure to defoliants. 38 C.F.R. §§ 3.307, 3.309. However, chronic idiopathic peripheral neuropathy is not one of the diseases for which presumptive service connection may be granted. Although acute or subacute peripheral neuropathy is one of the diseases for which presumptive service connection may be granted, there is no competent there is no competent medical evidence of acute or subacute peripheral neuropathy during service or during the first year following the veteran' s return from Vietnam. 38 C.F.R. 3.307(a)(6)(ii) (1998). As such, entitlement to service connection for chronic idiopathic peripheral neuropathy on a presumptive basis cannot be well grounded. Notwithstanding the foregoing, a veteran is not precluded from establishing entitlement to service connection for diseases not subject to presumptive service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The holding in Combee is applicable to the facts in this case. However, establishing a well- grounded claim for service connection for a particular disability requires more than an allegation that the particular disability had its onset in service. It requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible and capable of substantiation as set forth above. In this regard, a lay person is competent to describe an injury or symptoms of a disability. However, a lay person not competent to make a medical diagnosis, or to relate a given medical disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The service medical records reflect no complaint or finding of a neuromuscular disorder, to include peripheral neuropathy or primary lateral sclerosis. The first clinical evidence of peripheral neuropathy was in the early 1990s, many years after service. The veteran has not submitted any competent medical evidence nor is there competent medical evidence of record which establishes a nexus between the veteran’s military service, to include exposure to Agent Orange, and the current neuromuscular disorder, diagnosed in February 1997 as primary lateral sclerosis due to spastic paraparesis of uncertain etiology. Accordingly, the claim is not well grounded and must be denied. The Board notes that the Court has held that, when a claimant fails to submit a well-grounded claim under 38 U.S.C.A. § 5107(a) (West 1991), VA has a duty under 38 U.S.C.A. § 5103(a) (West 1991) to advise the claimant of the evidence required to complete the application. In the case at hand, the Board finds that the rating decision, statement of the case, and supplemental statement of the case, adequately informed the veteran of what evidence is necessary evidence to support his claim. See Robinette v. Brown, 8 Vet.App. 69 (1995); The Board acknowledges that it has decided the present appeal on a different basis than did the RO. When the Board addresses in a decision a question that has not been addressed by the RO, it must be considered whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby. See Bernard v. Brown, 4 Vet.App. 384 (1993). The Board concludes that the veteran has not been prejudiced by the decision herein. The veteran was denied by the RO. The Board considered the same law and regulations. The Board merely concludes that the veteran did not meet the initial threshold evidentiary requirements of a well-grounded claim. The result is the same. ORDER Entitlement to service connection for peripheral neuropathy as a result of exposure to herbicides is denied. ROBERT P. REGAN Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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 -