Citation Nr: 1031215 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 09-21 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for peripheral neuropathy, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran had active service from July 1953 to June 1955 and from January 1961 to January 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 Regional Office (RO) in Louisville, Kentucky rating decision, which denied the claim on appeal. The Board notes the Veteran requested a hearing in his June 2009 substantive appeal form, but withdrew the hearing request in May 2010 and requested that the matter be sent directly to the Board for review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The most probative evidence of record does not establish that the Veteran has a current diagnosis of peripheral neuropathy that is etiologically related to a disease, injury, or event in service, to include exposure to herbicides. CONCLUSION OF LAW Peripheral Neuropathy was not incurred in or aggravated by service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, the Department of Veteran's Affairs (VA) has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran 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 Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. The VCAA letter dated in July 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The July 2008 letter explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records have been associated with the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claims, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Board concludes an examination is not needed. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of: (1) a current disability; (2) an in-service event, injury, or disease; and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be discussed in greater detail below, the Board believes that there is no credible lay evidence of in-service complaints, treatment, or competent evidence of an in-service diagnosis of peripheral neuropathy; no credible evidence of continuity of symptomatology from service; and no competent and credible evidence otherwise linking any current claimed peripheral neuropathy and the Veteran's military service, to include exposure to herbicides. Thus, VA is not required to provide the Veteran with a VA examination in conjunction with this claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2009). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2009). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a) (2009). Service connection for malignant tumors and organic diseases of the nervous system, to include peripheral neuropathy, may be established based on a legal "presumption" by showing that either manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). Here, no legal presumption is applicable because, while the Veteran has been diagnosed with peripheral neuropathy and cancer affecting multiple systems, there is no evidence, nor does the Veteran contend, that the cancer was diagnosed or manifest within one year of service. With respect to the claim for peripheral neuropathy, while the Veteran currently claims continuity of symptomatology of tingling in his bilateral upper and lower extremities, as will be discussed in greater detail below, the Board finds these representations less than credible and of far less probative value than the conclusions of multiple medical professionals that the Veteran's current peripheral neuropathy was most likely caused by chemotherapy treatment undergone decades after military service. Alternatively, a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f) (West 2002 & Supp. 2009); 38 C.F.R. § 3.307(a)(6)(iii) (2009). If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 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 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2009). The diseases for which service connection may be presumed to be due to an association with herbicide agents include chloracne or other acne form disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma. Id. The Board notes, notwithstanding the foregoing presumptive provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000). In the absence of a presumptive basis to grant a claim, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, the Veteran claims that his current bilateral upper and lower extremity peripheral neuropathy was caused by his exposure to herbicides in Vietnam during service. Specifically, the Veteran reports that during service he experienced tingling in the hands, feet, legs, and arms, which he was told were symptoms of malaria. The Veteran claims to have continued to experience such symptoms and asserts that the tingling experienced was a symptom of peripheral neuropathy. Initially, the Board observes that the Veteran had multiple tours of duty in Vietnam during the presumptive period. As such, exposure to herbicides is conceded. In addition, the Board notes that based on the Veteran's awards, service medals, and multiple tours of duty in the Republic of Vietnam it has considered application of the presumption afforded to combat veterans under 38 U.S.C.A. § 1154(b) (West 2002) as to the incurrence of a disease or injury in service. However, as the claimed disability is not alleged to have been incurred as a consequence of participation in combat, the Board finds that such provisions do not apply to his claim. Moreover, as noted, the Board has conceded exposure to herbicides while serving in Vietnam. The Veteran's service treatment records are absent for complaints, treatment, or diagnoses of peripheral neuropathy in service. The Veteran underwent multiple medical examinations, at none of which was he diagnosed with peripheral neuropathy, nor was there evidence of related symptoms. After service, the Veteran was not diagnosed with peripheral neuropathy for over 30 years after his conceded exposure to herbicides in Vietnam. In April 1989, the Veteran completed a report of medical history wherein he reported being in good health and did not report any symptoms of peripheral neuropathy and specifically denied neuritis. In the 1980s and 1990s on several instances the Veteran reported pain in the back, legs, or buttocks. In 1992, the Veteran reported gluteal pain with some radiation down the legs. However, in each of these circumstances, the Veteran reported acute onset of several weeks prior. In September 2004, the Veteran denied any neurological symptoms associated with numbness or weakness. In April 2006, the Veteran reported for the first time with complaints of an unsteady gait and problems walking and that he had felt off balance with bilateral leg weakness since his stroke the previous year and that the problems had worsened after starting chemotherapy for colon cancer. At that time, the Veteran denied any pain or other neurological symptoms, including sensory disturbances. In June 2006, the Veteran reported paresthesia, or tingling, for the first time. In September 2006, the Veteran stated that he had numbness in the fingers. In October 2006, peripheral neuropathy was listed by a private treatment provider on the Veteran's problems list. The Veteran reported numbness in the hands in December 2006. On examination, the Veteran had a positive Tinel's sign and intact sensation in his bilateral hands. The private examiner's assessment was peripheral neuropathy secondary to chemotherapy with a component due to the Veteran's carpal tunnel. In October 2007, the Veteran was afforded a nerve conduction / EMG study that showed fairly severe advanced peripheral neuropathy diffusely. As to the upper extremity, the Veteran had mild denervate activity C4 through C5, but nothing down in the left upper extremity. The examiner noted that to date no etiology for peripheral neuropathy had been found. The examiner recommended a motor sensory neuropathy panel, but stated that the main possibility was that the peripheral neuropathy was due to chemotherapy or "combination of chemotherapy plus possibly some old effects from Agent Orange, of course that is hard to prove." Several weeks later in October 2007, the Veteran spoke with the physician about the potential of Agent Orange being the cause of the peripheral neuropathy and the physician stated, "I cannot really say anything definitive on that, but certainly we found no other etiology other than chemotherapy as far as peripheral neuropathy is concerned." In December 2007, the same examiner noted the Veteran had received a peripheral neuropathy workup that had been negative other than the fact that he had had chemotherapy. The examiner opined that chemotherapy was "probably" the etiology for the peripheral neuropathy. VA treatment records indicate a diagnosis of unspecified idiopathic peripheral neuropathy from August 2009. In September 2009, the Veteran described increased pain in the left lower extremity that was attributed to a history of a deep vein thrombosis to that extremity. In September 2009, a private treatment record noted a 2 to 3 year history of bilateral leg pain and a several month history of edema in the legs. He had also been diagnosed with a blood clot in the left leg. In October 2009, the Veteran denied paresthesias and weakness in the extremities, but claimed discomfort and swelling in the lower extremities Based on the evidence discussed above, it is clear that the Veteran has a current diagnosis of peripheral neuropathy. However, the Board notes that, while the Agent Orange presumptive disorders include acute and subacute peripheral neuropathy, such is defined by the regulations as "transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset." See 38 C.F.R. § 3.309(e), Note 2 (2009). Chronic persistent peripheral neuropathy, which appears to be the type of peripheral neuropathy involved in the Veteran's case, is a condition which the VA Secretary has determined to be unrelated to herbicide exposure. See generally Diseases Not Associated with Exposure to Certain Herbicide Agents, 68 Fed. Reg. 27,630, 27,630-27,641 (May 20, 2003) (which classifies chronic persistent peripheral neuropathy as a condition specifically not associated with herbicide exposure). In this case, the service treatment records and post-service medical records do not indicate a diagnosis of acute or subacute peripheral neuropathy in service or for over 30 years after service, nor does the Veteran contend otherwise. The Board has considered the Veteran's representations that he experienced tingling in his arms, legs, feet, and hands in service and that he continued to experience those symptoms after service to the present. As the definition of acute and subacute peripheral neuropathy indicates that the symptoms resolve within two years of the date of onset, the Veteran's representations of continuity of symptomatology cannot serve to establish a diagnosis of acute or subacute peripheral neuropathy during service or within two years of exposure to herbicides. Furthermore, as will be discussed in greater detail below, the Board finds his own reports regarding the nature of his symptoms since discharge to not be credible in light of inconsistent statements made in the past. The presumptive provisions relating to acute and subacute peripheral neuropathy, therefore, are inapplicable in this case and service connection for peripheral neuropathy may not be established via the statutory presumption. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). As noted, however, the Veteran is not precluded from establishing service connection on a direct basis. Having reviewed the complete record, the Board concludes that the preponderance of the evidence is against finding that the Veteran's current peripheral neuropathy was caused or aggravated by his military service. Specifically, there is no competent medical evidence or credible lay evidence of record linking the Veteran's current peripheral neuropathy to his military service. With respect to the October 2007 treatment records from the Veteran's private physician, the Board notes the very speculative nature of the suggestion by the physician, and finds that his suggestion of a possible relationship is far too tenuous a basis on which to grant service connection. The reasonable doubt doctrine requires that there be a "substantial" doubt and "one within the range of probability as distinguished from pure speculation or remote possibility." 38 C.F.R. § 3.102; see also Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 462 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (holding that any medical link that is speculative, general or inconclusive in nature is of no probative value and not a sufficient basis to grant service connection). While the physician initially noted that it was possible that Agent Orange exposure had played some role in the Veteran's peripheral neuropathy, the Board finds it significant that the same physician later in October 2007 stated that he could not say anything definitive with respect to a link between Agent Orange exposure and the Veteran's peripheral neuropathy. Even more telling, by December 2007 the physician had ceased even to discuss the possibility of Agent Orange exposure being a causative factor, noting that a peripheral neuropathy workup had shown that the Veteran's chemotherapy for colon cancer was the probable cause of his peripheral neuropathy. That conclusion is supported by the Veteran's own reports in April 2006 that he had been experiencing increasing neurological problems, specifically leg weakness and balance problems, since a stroke the previous year and that the symptoms had worsened since undergoing chemotherapy. In addition, a second private treating physician, in December 2006 also concluded that the Veteran's peripheral neuropathy was caused by his chemotherapy treatment. That treatment provider also opined that some element of the Veteran's problem was also related to carpal tunnel problems. The Board has considered the Veteran's lay assertion that his current peripheral neuropathy is related to his military service. Certainly, he is competent to report sensory or observed symptoms such as tingling in the extremities, and his testimony in that regard is entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Credibility, however, is an adjudicative determination and the Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the Board finds the Veteran's statements as to any assertion of a continuity of peripheral neuropathy symptoms from service not credible. While the Veteran claims to have reported symptoms of tingling in the hands, feet, legs, and arms in service, he concedes that he was not diagnosed with peripheral neuropathy and that his complaints in service were attributed to symptoms of malaria. Furthermore, the Veteran underwent numerous medical examinations while in the military in the years after herbicide exposure. At that time, the Veteran did not report any tingling or other symptoms of peripheral neuropathy and consistently reported that his health was good and that he did not have health problems other than those reported. Furthermore, the contemporaneous medical examinations universally found the Veteran's upper extremities, lower extremities, and neurological system normal on physical examination. In addition, after leaving service in 1984 the Veteran brought claims for service connection for several disorders, including varicose veins of the lower extremities and residuals of malaria. However, at that time the Veteran did not bring a claim for tingling, weakness, numbness, or any other symptom of peripheral neuropathy. The Board finds it reasonable to conclude that had the Veteran been experiencing ongoing symptoms of peripheral neuropathy after exposure to herbicides in Vietnam that he would have reported these symptoms during one or more of his multiple medical examinations and/or brought a claim for these symptoms. As noted, the Board is cognizant that, in the 1980s and 1990s on several instances the Veteran reported pain in the back, legs, or buttocks. In 1992, the Veteran reported gluteal pain with some radiation down the legs. However, in each of these circumstances, the Veteran reported acute onset of several weeks prior. In September 2004, the Veteran denied any neurological symptoms associated with numbness or weakness. Most significant, in April 2006, the Veteran reported for the first time with complaints of an unsteady gait and problems walking and that he had felt off balance with bilateral leg weakness since his stroke the previous year and that the problems had worsened after starting chemotherapy for colon cancer. As discussed above, the Veteran has been treated consistently for peripheral neuropathy since that time, which his own physician ultimately concluded was caused primarily by his chemotherapy treatment with some element of carpal tunnel problems. Given the Veteran's inconsistent statements over the years as to the date of onset of various complaints, as well as the denials of any symptomatology on several occasions, the Board finds his current assertion of a continuity of symptomatology since service not credible. In essence, while the Board acknowledges the Veteran's sincere belief that his current peripheral neuropathy was caused by herbicide exposure in Vietnam, the greater weight of relevant medical evidence from the time and throughout the Veteran's service, as well as the Veteran's own actions and representations during service and thereafter do not support his claim of a continuity of symptomatology. As discussed, the service treatment records do not include any complaints of peripheral neuropathy symptoms in service. Nor are there any documented credible complaints attributable to peripheral neuropathy for over three (3) decades after service. To date, the claims file indicates no VA or private treating professional has affirmatively related the Veteran's current peripheral neuropathy to herbicide exposure in Vietnam or any other incident of military service. As discussed above, while his treating physician did allude to the possibility once, that same physician later specifically opined that the most likely cause of the peripheral neuropathy was the Veteran's chemotherapy for colon cancer. As such, the Board concludes that the preponderance of the evidence is against granting service connection. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection must be denied. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2009); See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for peripheral neuropathy is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs