Citation Nr: 0811507	
Decision Date: 04/08/08    Archive Date: 04/23/08

DOCKET NO.  04-41 478	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for peripheral neuropathy 
of the lower extremities.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

J.G. Reinhart, Associate Counsel


INTRODUCTION

The veteran served on active duty from September 1967 to 
August 1969.  

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a December 2003 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Waco, Texas.  

In his November 2004 substantive appeal, the veteran 
requested a hearing before a member of the Board.  In a 
December 2007 letter, the RO informed the veteran that a 
hearing had been scheduled in January 2008.  In December 
2007, the veteran submitted a writing in which he cancelled 
his hearing request and stated that he had nothing new to 
add.  

One of the matters the Board must address is which issue or 
issues are properly before it at this time.  Under 
38 U.S.C.A. § 7105(a), an appeal to the Board must be 
initiated by a notice of disagreement and completed by a 
substantive appeal after a statement of the case (SOC) is 
furnished to the veteran.  In essence, the following sequence 
is required:  There must be a decision by the RO; the veteran 
must timely express disagreement with the decision; VA must 
respond by issuing a statement of the case that explains the 
basis for the decision to the veteran; and finally the 
veteran, after receiving adequate notice of the basis of the 
decision, must complete the process by stating his or her 
argument in a timely-filed substantive appeal.  38 C.F.R. 
§§ 20.200, 20.201, 20.202, 20.203.  See also 38 U.S.C.A. 
§ 7104; 38 C.F.R. §§ 19.4, 20.101 (the Board has jurisdiction 
to resolve questions as to its own jurisdiction).  See also 
Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (it is 
a well-established judicial doctrine that any statutory 
tribunal must ensure that it has jurisdiction over each case 
before adjudicating the merits, and that a potential 
jurisdictional defect may be raised by the court or tribunal, 
sua sponte or by any party at any stage in the proceedings, 
and, once apparent, must be adjudicated).   

In April 2006, the veteran initiated an appeal of an RO 
decision that denied service connection for a skin disorder.  
That appeal was not perfected and is not before the Board at 
this time.  

In October 2005, the RO denied the veteran's claim for 
entitlement to service connection for a skin disorder.  He 
subsequently initiated an appeal of that decision by the 
filing of a notice of disagreement in April 2006.  In July 
2006, the RO responding by issuing a statement of the case.  
The veteran failed to perfect his appeal to the Board.  As 
the process outlined above was not completed, the veteran's 
appeal of the October 2005 RO decision is not before the 
Board or VA at this time.  


FINDING OF FACT

The veteran's peripheral neuropathy did not have onset during 
his active service, did not manifest until more than thirty 
years after his most recent active service exposure to an 
herbicide agent, and is not otherwise etiologically related 
to his active service.  


CONCLUSION OF LAW

The criteria for service connection for peripheral neuropathy 
have not been met.  38 U.S.C.A. §§ 1110, 1116 (West 2002 & 
Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for a disability resulting 
from a disease or injury incurred in or aggravated by 
service.  See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 
3.303(a) (2007).  In general, service connection requires (1) 
medical evidence of a current disability; (2) medical, or in 
certain circumstances, lay evidence of in- service incurrence 
or aggravation of a disease or injury; and (3) medical 
evidence of a nexus between the claimed in- service disease 
or injury and the current disability.  See Hickson v. West, 
12 Vet. App. 247, 253 (1999).  

In addition, a veteran who, during active military, naval, or 
air service, served in the Republic of Vietnam during the 
Vietnam era, and has a disease listed in 38 C.F.R.  
§ 3.309(e), shall be presumed to have been exposed during 
such service to an herbicide agent, such as Agent Orange, 
unless there is affirmative evidence to establish that he or 
she was not exposed to any such agent during that service.  
See 38 C.F.R. § 3.307(a)(6)(iii).

Furthermore, even if a veteran does not have a disease listed 
at 38 C.F.R. § 3.309(e), he or she is presumed to have been 
exposed to herbicides if he or she served in Vietnam between 
January 9, 1962, and May 7, 1975, unless there is affirmative 
evidence to establish that the veteran was not exposed to any 
such agent during that service.  See 38 U.S.C.A. § 1116(f).

If a veteran was exposed to Agent Orange during active 
military, naval, or air service, certain specified diseases 
shall be service-connected, if the requirements of 38 C.F.R. 
§ 3.307(a) are met, even if there is no record of such 
disease during service.  38 C.F.R. § 3.309(e).  The list of 
diseases includes acute and subacute peripheral neuropathy.  
See 38 C.F.R. § 3.309(e).

For purposes of the presumption, the term "acute and 
subacute peripheral neuropathy" means transient peripheral 
neuropathy that appears within weeks or months of exposure to 
an herbicide agent and resolves within two years of the date 
of onset.  Id.

VA has determined that there is no positive association 
between exposure to herbicides and any other condition for 
which the Secretary has not specifically determined that a 
presumption of service connection is warranted.  See Notice, 
68 Fed. Reg. 27630- 27641 (2003).

Based on the above, service connection may be presumed for 
residuals of Agent Orange exposure by showing two elements.  
First, a veteran must show that he or she served in the 
Republic of Vietnam during the Vietnam War era.  See 38 
U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).  Second, the 
veteran must be diagnosed with one of the specific diseases 
listed in 38 C.F.R. § 3.309(e).  Brock v. Brown, 10 Vet. App. 
155, 162 (1997).  However, even if a veteran is found not 
entitled to a regulatory presumption of service connection, 
the claim must still be reviewed to determine if service 
connection can be established on a direct basis.  Combee v. 
Brown, 34 F.3d 1039 (Fed Cir. 1994)

In this case, the record shows that the veteran served in the 
Republic of Vietnam during the Vietnam War.  Thus, he is 
presumed to have been exposed to an herbicide agent during 
service.  However, the earliest evidence that the veteran has 
peripheral neuropathy comes more than 30 years after 
separation from service and there is no competent evidence to 
establish (or even indicate) that the veteran's current 
peripheral neuropathy is related to his service, including as 
to exposure to an herbicide agent.  

Service medical records are absent for report of neurological 
symptoms involving his extremities.  An August 1969 report of 
separation medical examination shows normal clinical 
evaluations of the veteran's lower extremities and neurologic 
system.  On an associated report of medical history, the 
veteran indicated that he did not then have nor ever had 
neuritis or paralysis.  This is evidence against his claim 
because these records show that peripheral neuropathy did not 
have onset during the veteran's service.  

Post service, the first medical evidence mentioning the 
veteran's neurological system is found in clinic notes from 
the Family Care Clinic, dated in May 1999.  Those records 
list physical examination findings including that the veteran 
had no edema of the extremities, had bilateral peripheral 
pulses of 1 plus, had no focal neurologic deficit, his 
central nervous system was intact, and sensitivity, 
coordination, properception, and gait were all normal.  In 
other words, the veteran's lower extremities were 
neurologically normal.  This is evidence against his claim 
because these records show that, almost 30 years after 
separation from service, the veteran did not have peripheral 
neuropathy.  

A September 1999 emergency room report from Shamrock General 
Hospital marks the first evidence that the veteran has a 
neurological deficit.  That report shows that the veteran was 
brought to the hospital following a motor vehicle accident in 
which he sustained close head injury and chest and pelvic 
trauma, including multiple fractures.  He was diagnosed, in 
part, with polyneuritis.  

June 2000 records from "F.L.", M.D., mark the first mention 
of neurologic deficits specific to the veteran's lower 
extremities.  Dr. F.L. described the injuries from the 
September 1999 accident and reported that the veteran 
complained of weakness, frequent falls, difficulty walking, 
and numbness and decreased sensitivity in both lower 
extremities.  These records tend to show that the veteran's 
peripheral neuropathy is unrelated to his service and, 
instead, are the result of his September 1999 accident, 
providing more evidence against this claim.  

VA outpatient clinic notes contain a September 2003 report of 
an electromyography study describing nerve conduction results 
for the veteran's lower extremities and stating an impression 
that the findings suggested neuropathic process.  An 
assessment listed in December 2003 VA clinic notes states 
that the veteran had peripheral neuropathy by nerve 
conduction study.  

To the extent that the veteran, a layperson, asserts that his 
peripheral neuropathy is etiologically related to his 
service, including exposure to an herbicide agent, such 
opinion is not competent evidence.  Routen v. Brown, 10 Vet. 
App. 183, 186 (1997).  See also Bostain v. West, 11 Vet. 
App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. 
App. 492 (1992) (a layperson without the appropriate medical 
training and expertise is not competent to provide a 
probative opinion on a medical matter, to include a diagnosis 
of a specific disability and a determination of the origins 
of a specific disorder).  See Routen v. Brown, 10 Vet. App. 
183, 186 (1997) ("a layperson is generally not capable of 
opining on matters requiring medical knowledge"); see also 
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) 
(explaining in footnote 4 that a veteran is competent to 
provide a diagnosis of a simple condition such as a broken 
leg, but not competent to provide evidence as to more complex 
medical questions).  

The Board finds that the question of whether peripheral 
neuropathy, first manifesting 30 years after exposure to an 
herbicide agent, is related to that exposure, is far too 
complex a medical question to be subject to the opinion of a 
layperson.  

Thus, all post service medical evidence shows that the 
veteran was first found to have peripheral neuropathy more 
than 30 years after his last possible exposure to an 
herbicide agent during service, and even then, only following 
a motor vehicle accident in September 1999.  The presumptive 
provisions described above are not for application because 
the veteran's peripheral neuropathy manifested not within 
weeks or months of his last exposure to an herbicide agent 
during service, but more than thirty years after that 
exposure.  No competent medical evidence of record attributes 
his peripheral neuropathy to his service, including to 
exposure to an herbicide agent.  

Based on the above, the preponderance of the evidence is 
against the veteran's claim for entitlement to service 
connection for peripheral neuropathy.  Hence, his claim must 
be denied.  The evidence in this case is not so evenly 
balanced so as to allow application of the benefit-of- the-
doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007).  

Duties to notify and assist

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the United States Department of Veterans Affairs (VA) 
has a duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper notice from VA must inform the claimant 
of any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; (3) that the claimant is expected to provide; and 
(4) must ask the claimant to provide any evidence in her or 
his possession that pertains to the claim in accordance with 
38 C.F.R. § 3.159(b)(1).  This notice must be provided prior 
to an initial unfavorable decision on a claim by the RO.  
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); 
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. 
Court of Appeals for Veterans Claims held that, upon receipt 
of an application for a service-connection claim, 38 U.S.C. 
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating, or is necessary to substantiate, each of the 
five elements of the claim, including notice of what is 
required to establish service connection and that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  

Here, the VCAA duty to notify was satisfied by way of letters 
sent to the veteran in November 2003 and March 2006 that 
fully addressed all four notice elements.  The November 2003 
letter was sent prior to the initial RO decision in this 
matter.  The letter informed the veteran of what evidence was 
required to substantiate the claims and of the veteran's and 
VA's respective duties for obtaining evidence.  The veteran 
was also asked to submit evidence and/or information, which 
would include that in his possession, to the RO.

Here, the duty to notify as to assignment of disability 
ratings and effective dates was not satisfied prior to the 
initial unfavorable decision on the claim by the RO.  Under 
such circumstances, VA's duty to notify may not be 
"satisfied by various post-decisional communications from 
which a claimant might have been able to infer what evidence 
the VA found lacking in the claimant's presentation."  
Rather, such notice errors may instead be cured by issuance 
of a fully compliant notice, followed by readjudication of 
the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. 
Cir. 2006) (where notice was not provided prior to the RO's 
initial adjudication, this timing problem can be cured by the 
Board remanding for the issuance of a VCAA notice followed by 
readjudication of the claim by the RO) see also Prickett v. 
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a 
fully compliant VCAA notification followed by readjudication 
of the claim, such as a statement of the case or supplemental 
statement of the case, is sufficient to cure a timing 
defect).  

In this case, the VCAA duty to notify, with regard to 
assignment if disability ratings and effective dates, was 
satisfied subsequent to the initial RO decision by way of the 
letter sent to the veteran in March 2006 that fully addressed 
all four notice elements.  The letter informed the veteran as 
to how VA assigns disability ratings and effective dates, 
what evidence was required to substantiate these elements, 
and of the veteran's and VA's respective duties in obtaining 
evidence.  The veteran was again asked to submit evidence 
and/or information, which would include that in his 
possession, to the RO.  Although the notice letter was not 
sent before the initial RO decision in this matter, the Board 
finds that this error was not prejudicial to the veteran 
because the actions taken by VA after providing the notice 
have essentially cured the error in the timing of notice.  
Not only has the veteran been afforded a meaningful 
opportunity to participate effectively in the processing of 
his claim and given ample time to respond, but the RO also 
readjudicated the case by way of a supplemental statement of 
the case issued in November 2006, after the notice was 
provided.  For these reasons, it is not prejudicial to the 
veteran for the Board to proceed to finally decide this 
appeal as the timing error did not affect the essential 
fairness of the adjudication.  

VA has a duty to assist the veteran in the development of the 
claim.  This duty includes assisting the veteran in the 
procurement of service medical records and pertinent 
treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In determining whether the duty to assist requires that a VA 
medical examination be provided or medical opinion obtained 
with respect to a veteran's claim for benefits, there are 
four factors for consideration.  These four factors are:  
(1) whether there is competent evidence of a current 
disability or persistent or recurrent symptoms of a 
disability; (2) whether there is evidence establishing that 
an event, injury, or disease occurred in service, or evidence 
establishing certain diseases manifesting during an 
applicable presumption period; (3) whether there is an 
indication that the disability or symptoms may be associated 
with the veteran's service or with another service-connected 
disability; and (4) whether there otherwise is sufficient 
competent medical evidence of record to make a decision on 
the claim.  38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court has stated 
that this element establishes a low threshold and requires 
only that the evidence "indicates" that there "may" be a 
nexus between the current disability or symptoms and the 
veteran's service.  The types of evidence that "indicate" 
that a current disability "may be associated" with military 
service include, but are not limited to, medical evidence 
that suggests a nexus but is too equivocal or lacking in 
specificity to support a decision on the merits, or credible 
evidence of continuity of symptomatology such as pain or 
other symptoms capable of lay observation.  McLendon v. 
Nicholson, 20 Vet. App. 79 (2006).  

In this case, all competent evidence of record shows that the 
veteran's peripheral neuropathy manifested many decades after 
service and there is no evidence of disease, injury, or an 
event during service related to his peripheral neuropathy.  
For this reason, the Board declines to afford the veteran a 
medical examination or obtain a medical opinion.  The Board 
finds that both service and post-service medical records 
provide evidence against this claim, rather than indicating 
some form of association.  

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the veteran.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  The RO has obtained service medical 
records and VA outpatient treatment records.  The veteran 
submitted private treatment records from the Shamrock General 
Hospital, the Family Care Clinic, and "F.L.", M.D.

Significantly, neither the appellant nor his representative 
has identified, and the record does not otherwise indicate, 
any additional existing evidence that is necessary for a fair 
adjudication of the claim that has not been obtained.  Hence, 
no further notice or assistance to the veteran is required to 
fulfill VA's duty to assist the appellant in the development 
of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 
281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 
Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 
Vet. App. 183 (2002).

ORDER

The appeal is denied.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs