Citation Nr: 1018076 Decision Date: 05/14/10 Archive Date: 05/26/10 DOCKET NO. 06-24 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for chronic demyelinating polyneuropathy, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran had active service from July 1962 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. This case was remanded by the Board in December 2007, and again in June 2009. FINDING OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era, and is presumed to have been exposed to herbicides (to include Agent Orange) during service. 2. Chronic demyelinating polyneuropathy is not one of the disabilities recognized by VA as associated with herbicide exposure; nor is there evidence that any such disability was manifested to a degree of 10 percent or more within a year of discharge from service. 3. The Veteran's chronic demyelinating polyneuropathy is unrelated to service, including the presumed exposure to herbicides. CONCLUSION OF LAW The criteria for the establishment of service connection for chronic demyelinating polyneuropathy, including as due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and implemented at 38 C.F.R. § 3.159 (2009), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. In March 2004, prior to the rating decision that denied the claim, the RO sent a letter to the Veteran which advised him of the VCAA, including the types of evidence and/or information necessary to substantiate his claim and the relative duties upon himself and VA in developing his claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran was sent a notice letter compliant with Dingess v. Nicholson, 19 Vet. App. 473 (2006) in March 2006. Because this decision denies the Veteran's claim no disability ratings or effective dates will be assigned, and any error due to the timing of the notice with respect to informing the Veteran of the type of evidence necessary to establish disability ratings or effective dates is non prejudicial to the Veteran. The Veteran's service treatment records, private medical records and VA medical records have been obtained. The Veteran has been provided a VA medical examination. He has been accorded ample opportunity to present evidence and argument in support of the appeal and he has done so. He provided testimony at a hearing in September 2007. VA was unable to obtain the Veteran's Social Security Administration (SSA) records. A December 2009 supplemental statement of the case informed the Veteran that his SSA records were unavailable. There is no indication that there is any additional obtainable relevant evidence to be obtained by either VA or the Veteran. The Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance is required to fulfill VA's duty to assist 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). Service connection may be granted for disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. 3.303(d). Where a Veteran served continuously 90 days or more during a period of war or during peacetime service after December 31, 1946, and an organic disease of the nervous system becomes manifest to a degree of at least 10 percent within one year from the date of termination of service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such a disorder during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The law and regulations stipulate certain diseases for which service connection may be presumed due to an association with exposure to herbicide agents. 38 C.F.R. § 3.309(e). The following diseases are deemed associated with herbicide exposure, under VA law: chloracne or other acneform diseases consistent with chloracne, diabetes mellitus (Type 2), Hodgkin's disease, chronic lymphatic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). See id. In this case the Veteran does not claim, and the record does not show, that the Veteran experienced chronic demyelinating polyneuropathy during service or for many years after his discharge from service. The Veteran does claim that his chronic demyelinating polyneuropathy was caused by his exposure to Agent Orange or other chemicals while serving in Vietnam. A March 1995 private medical record reveals that the Veteran reported a one month history of left lower extremity weakness. In May 1995, a private physician attributed the Veteran's complaints to chronic recurrent demyelinative polyneuropathy. The Veteran did not develop chronic demyelinating polyneuropathy until more than 24 years after discharge from service. Consequently, he is not entitled to presumptive service connection under 38 C.F.R. § 3.307 for a chronic disease which developed within a year of discharge from service. Chronic demyelinating polyneuropathy is not one of the diseases listed under 38 C.F.R. § 3.309(e) for which presumptive service connection may be granted for those Veterans who are presumed to have been exposed to herbicides based on their service in Vietnam. Consequently, he is not entitled to presumptive service connection for chronic demyelinating polyneuropathy based on his Vietnam service. Notwithstanding the foregoing law and regulations pertaining to presumptive service connection, the Veteran is not precluded from establishing service connection for his condition with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran stated at his September 2007 hearing that he was discharged from service in 1970 and that he first developed chronic demyelinating polyneuropathy in 1994. The Veteran asserted that his VA neurologist in Reno felt strongly that the Veteran's chronic demyelinating polyneuropathy was caused by Agent Orange. At the September 2007 hearing the Veteran submitted a binder of documents prepared by his former wife. The binder includes the Veteran's private medical records and includes excerpts from treatises about the effects of toxic exposure on the nervous system. Additional magazine and internet articles were received from the Veteran in August 2008. Although the articles submitted by the Veteran could be interpreted as indicating that there is a possibility that exposure to Agent Orange could cause neurological problems, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Because the record does not indicate what amount of Agent Orange the Veteran was exposed to, and because the articles submitted by the Veteran are general in nature and do not specifically relate to the facts and circumstances surrounding the Veteran's particular case, these articles are not found to be of any probative value. The Veteran was provided a VA Agent Orange exposure examination in September 2007. The Veteran reported that he also had possible exposure to Agent Blue during military service. The VA physician stated that the Veteran had an established diagnosis of chronic peripheral neuropathy and it was possible that such is related to Agent Orange exposure. The Board does not find this statement to have much probative value. Conjectural or speculative opinions which suggest no more than some remote possibility of an etiological relationship (in this case between presumed exposure to Agent Orange and the Veteran's development of chronic demyelinating polyneuropathy) are insufficient to support a grant of service connection. See 38 C.F.R. § 3.102 (2009). See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to a veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). On VA examination in July 2008, the Veteran received a diagnosis of mixed motor sensory peripheral neuropathy. The examiner provided a detailed medical history of the Veteran. He opined that the Veteran did not have chronic demyelinating neuropathy as a result of his period of service or presumed exposure to Agent Orange. The examiner pointed out that the Veteran does not currently have any of the conditions known to have a possible relationship to Agent Orange exposure. He noted that the VA medical provider who had suggested a relationship between the Veterans current chronic neuropathy and Agent Orange exposure (in September 2007) did not have the complete scientific data regarding peripheral neuropathy related to herbicides. He stated that the Veteran's symptoms began more than 20 years after the presumed Agent Orange exposure, therefore, it is not the type of neuropathy that could possibly be related to Agent Orange exposure. The examiner further stated that the some of the evidence cited by the Veteran's former wife has no scientific basis or is taken out of context from scientific publications. The examiner stated that the Veteran's neuropathy disability was more likely related to age, smoking, ethanol abuse, and spinal problems. In conclusion the Board notes that the Veteran first developed chronic demyelinating polyneuropathy many years after discharge from service and there is no medical evidence, other than that related to Agent Orange exposure, linking such to the Veteran's period of service. Although the September 2007 VA physician statement indicates that there is a possibility that the Veteran's development of neuropathy could have been related to Agent Orange exposure, that statement has been found to be speculative at best and not to be probative evidence with which to support the Veteran's claim. In light of the lack of any medical evidence of a positive link between Agent Orange exposure and the development of chronic demyelinating polyneuropathy, along with the July 2008 VA physician statement that the Veteran had other actual risk factors for the development of chronic demyelinating polyneuropathy, such as age, smoking, ethanol abuse, and spinal problems, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for chronic demyelinating polyneuropathy, to include as due to exposure to herbicides. ORDER Service connection for chronic demyelinating polyneuropathy, to include as due to exposure to herbicides, is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs