Citation Nr: 1034858 Decision Date: 09/15/10 Archive Date: 09/21/10 DOCKET NO. 06-10 719A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for peripheral neuropathy, bilateral lower extremities, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Flot, Associate Counsel INTRODUCTION The Veteran had active service from July 1952 to July 1972, including a tour of duty in the Republic of Vietnam (RVN) from July 1965 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2009, the Board remanded this matter for further development. The required development having been completed, adjudication on the merits may proceed. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects the Veteran also initiated an appeal concerning entitlement to service connection for bladder cancer. While the Veteran timely filed a Notice of Disagreement (NOD) and received a Statement of the Case (SOC) in October 2006, the Board finds that he did not perfect his appeal with the submission of a Substantive Appeal (VA Form 9). See 38 U.S.C.A. § 7105; see also Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995) (pursuant to 38 U.S.C.A. § 7105, a NOD initiates appellate review which is completed when a Substantive Appeal (VA Form 9) is filed in response to a SOC). As such, this issue is not presently before the Board. Please note 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 evidence does not show that the Veteran's current peripheral neuropathy, bilateral lower extremities, disability is related to service, whether as due to exposure to herbicides or otherwise. CONCLUSION OF LAW The criteria for entitlement to service connection for peripheral neuropathy, bilateral lower extremities, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 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; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). 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 United States Court of Appeals for Veterans Claims (Court) held that 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) also require VA 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 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. Prior to the initial AOJ decision in this matter, the Veteran was notified by letter dated in April 2004 of the evidence required to establish service connection, the evidence not of record necessary to substantiate his claim for service connection, and the Veteran's and VA's respective duties for obtaining evidence. The notice provided in this letter did not address how VA determines disability ratings and effective dates if service connection is awarded. However, the Board finds that this omission did not prejudice the Veteran. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Service connection is denied herein, and hence no disability rating or effective date will be assigned. The notification requirements of the VCAA therefore have been satisfied in this case. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records as well as providing a medical examination or obtaining a medical opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records, VA treatment records, and identified private treatment records have been obtained by VA. Additional private treatment records were submitted by the Veteran himself. He was afforded VA medical examinations in April 2005 and December 2009. During this latter examination, a medical opinion was rendered. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence necessary for a fair adjudication of the claim that has not been obtained. The Board therefore finds that all necessary development has been accomplished, and no further action is required to fulfill VA's duty to assist. 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). As such, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection The Veteran seeks service connection for peripheral neuropathy, bilateral lower extremities. He contends that this disability resulted from his in-service exposure to Agent Orange, an herbicide. Presumptive service connection means that a disease will be considered to have been incurred in or aggravated by service even though there is no evidence of such disease during service. 38 C.F.R. §§ 3.307(a); 3.309. Service connection is presumed where a Veteran served 90 days or more and manifested a chronic disease, such as an organic disease of the nervous system, to a compensable degree within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3); 3.309(a). However, this presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307(d), 3.309(a). Service connection further is presumed where a Veteran (1) was exposed to an herbicide agent during service and (2) manifests either (a) chloracne, porphyria cutanea tarda, or acute and subacute peripheral neuropathy to a degree of 10 percent or more within one year of the last date on which the Veteran was exposed to the herbicide agent or (b) AL amyloidosis, diabetes mellitus, Hodgkin's disease, chronic lymphatic leukemia, multiple myeloma, non-Hodgkin's lymphoma, prostate cancer, respiratory cancers, or certain soft tissue sarcomas at any time after service. 38 U.S.C.A. § 1116(a)(1)(B)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A Veteran is presumed to have been exposed to an herbicide agent if he served in the RVN between January 9, 1962, and May 7, 1975. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). When a Veteran is not entitled to presumptive service connection as due to herbicide exposure, as is the case here, VA must nevertheless consider whether service connection can be established on a direct basis. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also McCartt v. West (12 Vet. App. 164 (1999) (holding that Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), is applicable to herbicide exposure cases as well as to dioxin and radiation exposure cases). Direct service connection means that the facts establish that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish direct service connection for a disability, there generally must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Direct service connection also may be established for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board must assess the probative value of all the evidence, including medical evidence. The weight and credibility of evidence may be discounted "in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Board must account for evidence which it finds to be persuasive or unpersuasive and provide reasons for rejecting any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Secretary shall give the benefit of the doubt to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 49. As such, the Veteran prevails when the evidence supports his claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Id. Service treatment records do not reveal that the Veteran complained of, received treatment for, or was diagnosed with peripheral neuropathy of his lower extremities. They were given a normal clinical evaluation upon his entrance examinations in July 1952, upon several interim examinations in July 1956, June 1961, May 1964, and May 1968, and upon his retirement examination in January 1972. Subsequent to service, the Veteran sought healthcare treatment from a variety of providers. Treatment records from Elgin Air Force Base dated from October 1993 to April 2002 reflect that the Veteran has a history of Agent Orange exposure. They further reflect diagnoses of bilateral peripheral neuropathy, Charcot Marie Tooth disease, and "peripheral neuropathy - possible Charcot Marie Tooth versus Agent Orange exposure." A July 2002 treatment record from the White-Wilson Neuroscience Center documents that electrophysiologic testing suggested a moderately severe diffuse axonal polyneuropathy. The record also documents the Veteran's report of possible toxic exposures in the RVN. Treatment records dated from July to October 2002 from Dr. C.H. include impressions of peripheral polyneuropathy and peripheral neuropathy. They also include a notation that the Veteran is a Vietnam Veteran and has been exposed to Agent Orange in the past. An October 2002 treatment record from Dr. P.K. references the fact that the Veteran had recently been diagnosed with peripheral neuropathy at "White-Wilson Clinic." Dr. J.B. stated in a letter dated in October 2002 that the Veteran "presented with clinical findings of an autoimmune peripheral neuropathy." Treatment records from Dr. C.H. dated from January 2003 to April 2004 continue to include impressions of peripheral neuropathy. The Veteran submitted a statement in support of his claim in May 2004. He indicated that he cleaned Agent Orange off aircraft during his tour of duty in the RVN. He also indicated that his symptoms began in approximately 1987. Finally, he indicated that these symptoms initially were misdiagnosed with Charcot Marie Tooth disease before later properly being attributed to peripheral neuropathy. An October 2004 treatment record from Dr. C.H. includes an impression of peripheral neuropathy. A treatment record dated in February 2005 from Dr. R.L. lists peripheral neuropathy and being in the RVN with exposure to Agent Orange among the Veteran's past medical history. March 2005 VA treatment records contain an assessment of history of peripheral neuropathy. In his statement attached to his March 2005 NOD, the Veteran reiterated that he originally was misdiagnosed with Charcot Marie Tooth disease before properly being diagnosed with peripheral neuropathy. The Veteran was afforded a VA Agent Orange examination in April 2005. With respect to neuropathy, he reported symptoms beginning in 1988. Upon physical examination, a diagnosis of moderately severe diffuse axonal polyneuropathy was made. Several news articles were submitted by the Veteran in June 2005. Two of these articles discuss presumptive service connection for acute and subacute peripheral neuropathy based on herbicide exposure. Another article notes that Bien Hoa in the RVN was the site of a 5,000 gallon underground spill of Agent Orange. At the bottom of this article, the Veteran indicated that he was stationed at Bien Hoa for 6 months. Along with his April 2006 Substantive Appeal (VA Form 9), the Veteran attached a picture of himself and a Major as well as documentation relating to an award received by the Major as a result of his service in the RVN. The Veteran was afforded a VA peripheral neuropathy examination in December 2009. He detailed his symptoms and reported that they began in 1988. A diagnosis of chronic bilateral lower extremity polyneuropathy was rendered after physical examination. The examiner opined that this disability was less likely than not caused by or related to the Veteran's exposure to Agent Orange. In support of this opinion, she observed that acute transitory polyneuropathy is associated with such exposure but that chronic persistent peripheral neuropathy is not. The examiner then stated that "[t]here are multiple causes of polyneuropathy, including idiopathic, and the etiology in this [V]eteran is simply unknown." In light of the evidence, the Board finds that entitlement to presumptive service connection is not warranted for peripheral neuropathy, bilateral lower extremities, as a chronic organic disease of the nervous system. There is no evidence that the Veteran manifested peripheral neuropathy in his lower extremities to a compensable degree within one year from the date of his separation from service in 1972. Indeed, the record is devoid of treatment records from this time period. Entitlement to presumptive service connection also is not warranted for peripheral neuropathy, bilateral lower extremities, as due to exposure to herbicides. It is undisputed that the Veteran served in the RVN between January 9, 1962, and May 7, 1975. His exposure to an herbicide agent such as Agent Orange during service therefore is conceded. However, there is no evidence that he manifested acute or subacute peripheral neuropathy in his lower extremities to a degree of 10 percent or more within one year of the last date on which he was exposed to the herbicide agent. He completed his service in the RVN, and therefore last was exposed to herbicides such as Agent Orange, in July 1966. Service treatment records dated through July 1967 do not reference or even suggest the presence of peripheral neuropathy in the Veteran's lower extremities. The Board also finds that entitlement to direct service connection is not warranted for peripheral neuropathy, bilateral lower extremities, under Hickson. Diagnoses of Charcot Marie Tooth disease, peripheral neuropathy, bilateral peripheral neuropathy, autoimmune peripheral neuropathy, peripheral polyneuropathy, moderately severe diffuse axonal polyneuropathy, and chronic bilateral lower extremity polyneuropathy are of record. The first Hickson requirement therefore is satisfied. In contrast, the second Hickson requirement is not satisfied. There is no lay or medical evidence that the Veteran incurred or aggravated his peripheral neuropathy, bilateral lower extremities, disability during service. Service treatment records do not reveal that he complained of, sought treatment for, or was diagnosed with peripheral neuropathy of his lower extremities. Indeed, these extremities never were given an abnormal clinical evaluation. The third Hickson requirement also is not satisfied. There is no lay or medical evidence directly associating the Veteran's current peripheral neuropathy, bilateral lower extremities, with his service. He has not asserted that any such relationship exists. No physician, whether private or VA, has so opined. Rather, the VA examiner who conducted the Veteran's December 2009 peripheral nerves examination opined that the etiology of his disability among multiple causes "is simply unknown." Finally, the Board finds that entitlement to direct service connection is not warranted for peripheral neuropathy, bilateral lower extremities, under 38 C.F.R. § 3.303(d). All of the evidence does not establish that this disability, which was diagnosed several years after discharge, was incurred in service. The Veteran asserts that his conceded in-service exposure to herbicides caused it. However, he is not competent to so opine. Such an etiology opinion requires specialized medical training that a lay person like the Veteran lacks. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Layno v. Brown, 6 Vet. App. 465 (1994); see also 38 C.F.R. § 3.159(a)(2). The examiner who conducted the Veteran's December 2009 peripheral nerves examination, as a physician, has been specially trained in medicine. Yet she opined that the Veteran's peripheral neuropathy, bilateral lower extremities, disability is less likely than not caused by or related to his in-service exposure to the Agent Orange herbicide because it is chronic and persistent rather than acute and transitory. In this regard, the Veteran has reported that his symptoms began in approximately 1987 or 1988 and have continued ever since. These symptoms, as well as diagnoses accounting for them, are documented in the medical evidence of record beginning in October 1993. Passage of a lengthy period of time in which the Veteran did not complain of the disability at issue may be taken into consideration in determining whether or not to grant service connection. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The absence of any evidence of the Veteran's complaint of peripheral neuropathy symptomatology in his lower extremities for at least 15 years after his separation from service therefore is significant evidence against his claim. The preponderance of the evidence is against the Veteran's entitlement to service connection for peripheral neuropathy, bilateral lower extremities, for each of these reasons. As such, the doctrine of reasonable doubt is not applicable and service connection is denied. ORDER Service connection for peripheral neuropathy, bilateral lower extremities, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs