Citation Nr: 1040293 Decision Date: 10/27/10 Archive Date: 11/01/10 DOCKET NO. 07-03 154A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for peripheral neuropathy in the extremities. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran had active service from July 1967 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam between December 1967 and December 1968. 2. The Veteran maintains that his presumed exposure to herbicides during his service in Vietnam caused him to incur peripheral neuropathy. 3. The Veteran's peripheral neuropathy did not manifest during the Veteran's active military service or within one year of discharge from service in August 1970. 4. The Veteran's peripheral neuropathy is not related to service. CONCLUSION OF LAW The Veteran's peripheral neuropathy was not incurred in or aggravated by service, nor may it be presumed to be related to service. 38 U.S.C.A. §§ 1110, 1112, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.313 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION In the interest of clarity, the Board will initially discuss whether the claim decided here has been properly developed for appellate purposes. The Board will then address the merits of the claim, providing relevant VA law and regulations, the relevant facts, and an analysis of its decision. I. Veterans Claims Assistance Act of 2000 The Board must determine whether the claimant has been apprised of the law and regulations applicable to this matter, the evidence that would be necessary to substantiate the claim, and whether the claim has been fully developed in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) and other applicable law. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). VA is required to provide notice of the VCAA to a claimant as required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). More specifically, VA is required to notify a claimant of the evidence and information necessary to substantiate a claim and whether the claimant or the VA is expected to provide the evidence, and is required to request from the claimant any other evidence in his or her possession that pertains to the claim. VA provided notification to the Veteran in letters dated in April 2005, August 2005, and October 2006. 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159. In these letters, VA informed the Veteran of the evidence needed to substantiate his claim, and of the elements of his claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2009). VA advised the Veteran of the respective duties of the VA and of the Veteran in obtaining evidence needed to substantiate his claim. VA requested from the Veteran relevant evidence, or information regarding evidence which VA should obtain. Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also 73 Fed. Reg. 23353 (the requirement of requesting that the claimant provide any evidence in his/her possession that pertains to the claim was eliminated by the Secretary [effective May 30, 2008] during the course of this appeal, and this change eliminates the fourth element of notice as required under Pelegrini). And VA provided notification to the Veteran prior to the rating decision on appeal. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2007) (VCAA notice must be provided to a claimant before the initial unfavorable RO decision). Moreover, though the Veteran was not notified regarding disability evaluations and effective dates until after that rating decision, the RO readjudicated the Veteran's claim subsequently in two supplemental statements of the case. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (a timing error may be cured by a new VCAA notification followed by a readjudication of the claim). As such, the Board finds that proceeding with a final decision is appropriate here. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. The VCAA provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A. In this matter, the Board finds that VA's duty to assist has been satisfied as well. The RO retrieved relevant medical evidence. And the Veteran has been afforded the opportunity to appear before one or more hearings to voice his contentions. The Board notes that VA did not provide the Veteran with medical examination and an opinion for the service connection claim on appeal. A VA medical examination and opinion is required only when a reasonable possibility exists that such assistance would aid in substantiating a claim. 38 U.S.C.A. § 5103A. VA's duty to provide a medical examination is triggered where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; and (3) an indication that the disability may be associated with the Veteran's service; but (4) insufficient medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). See also Duenas v. Principi, 18 Vet. App. 512 (2004). Here, no reasonable possibility exists that recent medical examination or opinion would assist the Veteran in substantiating his claim to service connection for peripheral neuropathy. The medical evidence of record retrieved by the RO demonstrates that the Veteran has the disorder. Conducting medical examination to determine a diagnosis would serve no purpose here. Moreover, the record indicates that the Veteran's peripheral neuropathy did not manifest during service, during an applicable presumptive period following service, and is not otherwise related to service under the code. See 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.313 (2010). Conducting a medical examination for the purpose of rendering a nexus opinion would serve no purpose therefore. Indeed, the evidentiary foundation for a medical nexus opinion is lacking for the claim here. In making this assessment, the Board has reviewed the Veteran's own lay statements regarding the way in which he claims to have developed peripheral neuropathy due to his exposure to herbicides in Vietnam. As will be further detailed below, the Board will concede such exposure. However, the Veteran, as a lay person, is not competent to provide medical evidence that demonstrates a link between his current neuropathy and his service that ended over 40 years ago. He is not a credible witness on the issue of whether he incurred a disease during service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (VA is not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service). As will be detailed further, the evidence here does not establish that the Veteran had a disease, injury, or event in service that caused current neuropathy. All that has been established here is that he is presumed to have been exposed to herbicides, not that that exposure caused an injury or disease. As such, no reasonable possibility exists that medical examination and opinion would aid the Veteran in substantiating the service connection claim to peripheral neuropathy. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); Duenas and McLendon, both supra. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with VA's duties to notify or assist the Veteran in this appeal. Therefore, the Veteran has not been prejudiced as a result of the Board deciding his claim here. II. The Claim to Service Connection for Peripheral Neuropathy The Veteran maintains that he incurred peripheral neuropathy as a result of exposure to herbicides during service in the Republic of Vietnam. In the January 2006 rating decision on appeal, the RO denied the Veteran's claim. For the reasons set forth below, the Board agrees with that decision. 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, and who has one of the listed diseases under 38 C.F.R. § 3.309(e), 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. 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, 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: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, 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). 38 C.F.R. § 3.309(e). Effective August 31, 2010, VA has amended 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents. 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 or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year 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). 38 C.F.R. § 3.309(e) provides that 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. 38 C.F.R. § 3.309(e), Note 2. The Board notes moreover that a separate presumption to service connection may be found under 38 C.F.R. § 3.309(a), wherein certain neurological disorders may be presumed related to service if manifestation occurs within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). In this matter, the record does not preponderate against the Veteran's claim that he currently has peripheral neuropathy. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (to deny a claim on its merits, the evidence must preponderate against the claim). VA treatment records dated between May 2005 and March 2007 note diagnoses of peripheral neuropathy and polyneuropathy in the upper and lower extremities. However, presumptive service connection for peripheral neuropathy based on service and/or exposure to herbicides is unwarranted under 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307, 3.309, 3.313. Although the record demonstrates that the Veteran served in the Republic of Vietnam in the late 1960s, the record does not indicate that he developed peripheral neuropathy while in Vietnam, within one year of his service there, or within one year of leaving active service in August 1970. 38 C.F.R. §§ 3.309, 3.307(a)(6)(ii). Indeed, the medical evidence indicates initial diagnosis of peripheral neuropathy in 2005, many years after discharge from service. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309. Nevertheless, even if a Veteran is found not entitled to a regulatory presumption of service connection for exposure to herbicides, his claim of service connection must still be reviewed to determine whether service connection can be established on a direct basis, or under other presumptions noted under 38 C.F.R. §§ 3.307, 3.309(a). See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation). Direct service connection under 38 C.F.R. § 3.303 will be granted where the record demonstrates (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. Pond v. West, 12 Vet. App. 341, 346 (1999). Again, in this matter, the Board has found that the record does not preponderate against the Veteran's claim that he has peripheral neuropathy. See Alemany, supra. But the Board finds the preponderance of the evidence against the proposition that his disorder directly relates to service. See 38 C.F.R. § 3.303. The Veteran's service treatment records are negative for a neurological disorder. The Veteran's March 1970 separation reports of medical examination and history are negative for a neurological disorder. As noted, the earliest medical evidence of the Veteran's peripheral neuropathy is dated in 2005, approximately 35 years following discharge from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). The Veteran did not claim service connection for peripheral neuropathy until 2005, also approximately 35 years following service. See Shaw v. Principi, 3 Vet. App. 365 (1992) (a Veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). And the their element of Pond is not established here because the record contains no medical evidence of a nexus between service and the peripheral neuropathy. See Pond, supra. The Board has reviewed the several statements of record from the Veteran and his spouse which contend that the Veteran's exposure to herbicides relates to his current peripheral neuropathy. The Board notes that lay testimony is competent to establish the presence of observable symptomatology. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Indeed, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, the lay evidence describing the symptoms associated with the neuropathy is of probative value with regard to the issue of whether the Veteran has neuropathy, and to what extent it is disabling. Laypersons, however, are generally not capable of opining on matters requiring medical knowledge (e.g., whether a disorder relates to service). See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). The lay statements regarding the etiology of the Veteran's disorder are of no probative value, therefore. In short, neither the Veteran nor his spouse possesses the requisite medical training and expertise to comment competently on whether the current disorder - which was first treated 35 years following service - relates to service in Vietnam in 1967 and 1968. As such, the Board finds service connection unwarranted for peripheral neuropathy on either a direct or a presumptive basis. 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.313. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the- doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for peripheral neuropathy in the extremities is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs