Citation Nr: 1112456 Decision Date: 03/29/11 Archive Date: 04/07/11 DOCKET NO. 07-25 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a neurological disorder, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, spouse, and friend ATTORNEY FOR THE BOARD E. Woodward Deutsch, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1970, with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a December 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the benefits sought on appeal. In August 2008, the Veteran was afforded a Travel Board hearing before the undersigned Veterans Law Judge. In December 2009, the Board remanded the claim for additional development. FINDING OF FACT The preponderance of the evidence does not show that the Veteran's neurological disorder (claimed as bilateral peripheral neuropathy of the upper and lower extremities) is related to any period of active duty, active duty training, or inactive duty training or to any incident therein, including herbicide exposure. CONCLUSION OF LAW Service connection for a neurological disorder is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). Service connection for some disorders, including other organic diseases of the nervous system, will be rebuttably presumed if manifested to a compensable degree within a year following active service. 38 U.S.C.A. §§1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2010). Service connection may also be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2010). Active military, naval, or air service includes any period of active duty training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2010). Active duty training includes full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2010). Inactive duty training is defined as duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C.A. § 101(23) (West 2002); 38 C.F.R. § 3.6(d) (2010). Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty training, or from injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101(24), 106, 1110 (West 2002). The definition of active duty also includes any periods of inactive duty for training during which an individual becomes disabled or dies from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6 (2010). However, presumptive periods do not apply to active duty training or inactive duty training. Biggins v. Derwinski, 1 Vet. App. 474 (1991). A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310 (2010). Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310 (2010); Allen v. Brown, 7 Vet. App. 439 (1995). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service. Watson v. Brown, 309 (1993). Establishing service connection on a secondary basis essentially requires evidence sufficient to show that a current disability exists; and that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. §§ 3.303, 3.310 (2010). It is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its entirety. Owens v. Brown, 7 Vet. App. 429 (1995); Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69 (1993); Hensley v. Brown, 5 Vet. App. 155 (1993). In determining whether evidence submitted by a Veteran is credible, the Board may consider internal consistency, facial plausibility, and consistency with other information submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran, in written statements and testimony before the Board, contends that he is entitled to service connection for peripheral neuropathy affecting his upper and lower extremities. Specifically, he asserts that the condition is related to his exposure to herbicides in Vietnam. The Board is required to consider all theories of entitlement raised either by the claimant or by the evidence of record. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Accordingly, the Board will consider whether the Veteran's peripheral neuropathy was caused or aggravated by in-service herbicide exposure or any other aspect of his qualifying active service. Diseases associated with exposure to certain herbicide agents will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.309(e) (2010). Moreover, an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Any Veteran who, during active 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 to a herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2010). The Veteran's personnel records show that he served in Vietnam from September 1968 to August 1969 and that his decorations included the Vietnam Service Medal with two Bronze Stars and the Vietnam Campaign Medal with 60 device. Thus, the Veteran will be afforded the presumption of exposure to herbicides. However, for acute or subacute peripheral neuropathy, it must have developed to a degree of 10 percent of more disabling within a year of the last date on which the Veteran was exposed to herbicide agents during active duty. The Board finds that the evidence does not show any diagnosis of peripheral neuropathy within one year following the Veteran's last service in Vietnam. Therefore, the evidence does not support a finding that presumptive service connection as secondary to exposure to herbicides is not warranted. 38 C.F.R. §§ 3.307, 3.309 (2010). Accordingly, the Board will address whether service connection for peripheral neuropathy is warranted on alternate bases. The Veteran's service medical records, including his April 1968 pre-induction and February 1970 separation examinations, are negative for any complaints or clinical findings of neurological problems. Accordingly, the Board finds that chronicity in service is not established in this case. 38 C.F.R. § 3.303(b) (2010). As chronicity in service has not been established, a showing of continuity of symptoms after discharge is required to support the Veteran's service connection claim. 38 C.F.R. § 3.303(b) (2010). The Board acknowledges that, at the August 2008 Travel Board hearing, the Veteran testified that he had sought VA treatment for peripheral neuropathy beginning in 1987. VA has a duty to make reasonable efforts to assist the Veteran in obtaining evidence, including VA and other federal records, necessary to substantiate his claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); 38 U.S.C.A. § 5103A(a)(1) (West 2002). Here, the Board met that obligation by remanding the Veteran's claim in an effort to obtain his VA medical records for the specified time period. However, a subsequent request for VA medical records did not produce any evidence in support of the Veteran's claim. Thereafter, the RO informed the Veteran that no VA medical records from the 1980s could be located and requested that he submit any such records in his own possession. However, the Veteran did not respond to that request. Consequently, the Board finds that any additional evidence in support of the Veteran's claim has not been obtained because of his inability or unwillingness to cooperate. The Board reminds the Veteran that the duty to assist is not a one-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). In addition to claiming VA treatment for peripheral neuropathy in 1987, the Veteran testified that he had been treated for that disorder during his final period of service in the National Guard. His long-time friend and former supervisor in the National Guard also testified that the Veteran had been discharged from that branch of service due to complications arising from his neuropathy. Pursuant to the Board's December 2009 remand, the RO obtained the Veteran's National Guard records, which corroborate his account of treatment for peripheral neuropathy. Specifically, those records show that, in April 1987, the Veteran sought medical treatment for problems raising his feet, which interfered with his ability to walk, run, and climb. Contemporaneous clinical testing yielded a diagnosis of sensory and motor neuropathy. Significantly, the physician who treated the Veteran noted that his gradually progressive disorder was hereditary in nature, but did not indicate that it was related to any aspect of his qualifying active service. The record thereafter shows that, in June 1999, the Veteran underwent a private neurological consultation, which yielded findings consistent with peripheral neuropathy. The diagnosing physician indicated that the Veteran's disorder likely had its onset in 1984, roughly three years before he sought initial treatment for neurological symptoms. Thereafter, the Veteran's spouse testified that she had first noticed the Veteran's symptoms in the early 1980s. Subsequent private and VA medical records show that the Veteran has continued to receive treatment for his neurological symptoms on an ongoing basis. Additional Social Security Administration (SSA) records show that he was awarded SSA disability compensation for those symptoms, effective September 17, 1999. The medical records upon which that SSA disability award was predicated include reports of electromyographic and genetic testing, conducted in the second half of 1999, which relate Veteran's symptoms to an inherited disorder known as hereditary neuropathy with liability to pressure palsies (HNPP). In an October 2006 statement, the private physician who performed the June 1999 neurological consultation indicated that the Veteran's peripheral neuropathy was becoming progressively more disabling. Significantly, that physician also opined that, while a definitive etiology for the peripheral neuropathy had not been established, the Veteran's extensive exposure to Agent Orange in Vietnam was the most likely etiologic agent. The physician acknowledged that the Veteran's symptoms had not arisen for many years after his Vietnam service, but noted that the latent onset was completely consistent with his exposure history as a neuropathy due to a chemical such as Agent Orange would not be expected to develop immediately after exposure. However, the private physician did not provide any additional rationale in support of the opinion linking the Veteran's neurological symptoms to his military service. Nor did that physician indicate that his opinion was based on a review of the Veteran's pertinent medical history, including the National Guard and SSA records showing that his neurological symptoms were due to a genetic disorder. In accordance with the Board's December 2009 remand, the Veteran was afforded a VA peripheral nerves examination in May 2010. At that time, he reported a history of pain, numbness, weakness, and related sensory problems in his upper and lower extremities, which had their onset in 1987. On clinical evaluation, the Veteran displayed significant weakness throughout all of his extremities as well as muscular atrophy in his legs. Based on the results of the examination and a review of the claims folder, the VA examiner determined that the Veteran was suffering from a progressive course of distal upper and lower extremity weakness and numbness. The VA examiner then opined that it was less likely than not that the Veteran's symptoms were related to his Vietnam-era service. While acknowledging the positive nexus opinion rendered by the private physician, the VA examiner disagreed with that physician's finding of an etiological relationship between the Veteran's neurological symptoms and his Agent Orange exposure. The VA examiner noted that acquired neuropathies from toxic exposures tend to begin at or around the time of exposure, progress during and for a short period (weeks) after the exposure is removed, and not progress significantly after that time. Additionally, the VA examiner noted that toxin-induced neuropathies tend to present with more positive symptoms, such as pain and tingling, than the Veteran initially exhibited. Finally, the VA examiner observed that the Veteran's prior medical records were replete with clinical findings indicating that his neurological symptoms supported a diagnosis of HNPP, which was a genetic disorder that had no link to herbicide exposure. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board finds that the May 2010 VA examiner's opinion, indicating that the Veteran's neurological symptoms are manifestations of the genetic disorder HNPP and are unrelated to any in-service herbicide exposure, is the most probative and persuasive medical evidence of record. That VA examiner's opinion was based on a comprehensive examination of the Veteran and a review of his claims folder. Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). Additionally, that VA examiner's opinion was undertaken directly to address the issue on appeal and constitutes the most recent medical evidence of record. Moreover, that VA examiner's opinion was supported by a detailed rationale, which was consistent with the other competent evidence of record, including the Veteran's prior EMG and genetic tests, and specifically addressed and reconciled the countervailing October 2006 opinion of the private treating physician. In contrast, that private physician's October 2006 opinion, relating the Veteran's neurological symptoms to his reported Agent Orange exposure, was not supported by a detailed rationale and, thus, is of limited probative value. Sklar v. Brown, 5 Vet. App. 140 (1993). Moreover, unlike the May 2010 VA examiner, the private physician does not appear to have based his findings on a review of the Veteran's claims folder. The Board recognizes that claims folder review is not a requirement for private medical opinions, and that a private medical opinion may not be discounted solely because the opining clinician did not review the claims folder. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Nevertheless, in this case the Board considers it significant that the October 2006 private physician did not take into account highly pertinent medical evidence. Specifically, the private physician did not address the 1987 clinical evaluation and the 1999 EMG and genetic tests, which indicate that the Veteran's neurological symptoms are attributable to a hereditary disorder. By declining to consider that medical evidence, which directly contradicts the findings with respect to the etiology of the Veteran's neuropathy, the private physician further undermined the probative weight of the positive nexus opinion. The Board finds that the preponderance of the evidence does not support a finding of a nexus between the Veteran's current neurological problems and his in-service herbicide exposure. On the contrary, the preponderance of the evidence weighs against such a finding, as the May 2010 VA examiner's opinion, which the Board considers highly probative and persuasive, specifically indicates that the Veteran's current neurological symptoms are manifestations of a genetic disorder and are unrelated to his reported in-service herbicide exposure. Accordingly, the Board finds that service connection for a neurological disorder is not warranted as secondary to herbicide exposure. Nor is service connection warranted on a direct basis. The Board considers it significant that the first evidence of neurological problems is dated in April 1987, approximately 17 years after the Veteran's discharge from active duty. Moreover, the Veteran himself has acknowledged that he did not experience any neurological symptoms prior to the 1980s. The Board is mindful that the Veteran's spouse has indicated that she first became aware of his symptoms in the early 1980s and that a private treating physician has indicated that those symptoms had their onset in 1984. However, that physician did not provide a rationale for the finding, which reduces its probative value. In any event, the onset of those neurological symptoms, even by the accounts of the Veteran's spouse and private physician, is still several years after he left service. In view of the lengthy period without complaints, diagnoses, or treatment related to neurological problems, the evidence is against a finding of a continuity of symptomatology, and that weighs heavily against the Veteran's claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In addition, the evidence does not show that any organic disease of the nervous system manifested to a compensable degree within one year following the Veteran's separation from active service such that presumptive service connection may be granted. 38 C.F.R. §§ 3.307, 3.309 (2010). Moreover, while cognizant that, following his discharge from active service, the Veteran served in the National Guard, the Board finds no evidence indicating that any neurological disease or injury arose during a qualifying period of active duty or inactive duty training. Further, while it appears that the Veteran's neurological symptoms manifested within close proximity of his retirement from the National Guard, presumptive periods do not apply to active duty training or inactive duty training. Biggins v. Derwinski, 1 Vet. App. 474 (1991). Thus, even assuming that the Veteran's symptoms arose within a year of a period of active duty or inactive training, he would still not be entitled to service connection on a presumptive basis. Service connection may be granted when all the evidence establishes a nexus between military service and current complaints. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). However, the Board finds that the preponderance of the evidence does not suggest a nexus between any aspect of the Veteran's active service and his current neurological problems. The May 2010 VA examiner's opinion and the other competent medical evidence of record indicate that the Veteran's neurological symptoms are manifestations of a genetic disorder and are unrelated to any in-service herbicide exposure. Moreover, the May 2010 VA examiner's opinion does not indicate that the Veteran's neurological symptoms were caused or aggravated by any other aspect of his military service. Nor is there any other probative evidence of such a relationship. Accordingly, the Board finds that direct service connection for a neurological disorder is not warranted. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). The Board has considered the Veteran's assertions that his neurological problems are related to his period of active service, including to his exposure to herbicides in Vietnam. Lay evidence is one type of evidence that the Board must consider when a Veteran's claim seeks disability benefits. 38 C.F.R. § 3.307(b) (2010). The Veteran is competent to report the presence of current neurological symptoms throughout his upper and lower extremities, and his statements in that regard are considered credible. Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007); Caluza v. Brown, 7 Vet. App. 498 (1995). However, to the extent that the Veteran relates his current symptoms to service, his assertions are not probative. As a lay person, he is not competent to opine as to medical etiology or to render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007); Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Washington v. Nicholson, 19 Vet. App. 362 (2005). Accordingly, his assertions as to medical causation and etiology, absent corroboration by objective medical evidence and opinions, lack sufficient probative value to establish a nexus between his current symptoms and his time in service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board). The competent evidence does not relate any neurological problem to the Veteran's in-service herbicide exposure or to any other aspect of his military service. In sum, the weight of the evidence of record demonstrates that the Veteran's neurological problems are manifestations of a genetic disorder and are not related to his service or to any incident therein, including exposure to herbicides. As the preponderance of the evidence is against the Veteran's claim for service connection, that claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in August 2005 and August 2007; a rating decision in December 2005, and a statement of the case in June 2007. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the November 2010 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained a medical examination and afforded the Veteran an opportunity to testify at a Travel Board hearing in support of his claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER Service connection for a neurological disorder is denied. _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs