Citation Nr: 1222189	
Decision Date: 06/26/12    Archive Date: 07/02/12

DOCKET NO.  08-23 496	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Whether there is new and material evidence to reopen a claim for service connection for peripheral neuropathy of the left lower extremity, including due to Agent Orange exposure, and whether service connection is warranted.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

William J. Jefferson III, Counsel



INTRODUCTION

The Veteran served on active duty from April 1966 to April 1969.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a March 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which determined there was not new and material evidence and, therefore, denied the Veteran's petition to reopen his previously denied, unappealed, claim for service connection for peripheral neuropathy of his left lower extremity.  This claim, among others, earlier had been considered and denied in September 2004, and he had not appealed that prior decision, hence, the reason it since had become final and binding on him based on the evidence then of record.

Initially, he had claimed entitlement to service connection for peripheral neuropathy of both lower extremities, so right and left.  However, the RO's March 2007 decision limited its consideration to the left lower extremity, which is the decision that he in response appealed to the Board.  38 C.F.R. § 20.200 (2011).  He did not also appeal the RO's more recent January 2009 decision determining there also was not new and material evidence to reopen the claim concerning the peripheral neuropathy of his right lower extremity.


FINDINGS OF FACT

1.  The unappealed September 2004 rating decision denied service connection for peripheral neuropathy of the left lower extremity because it was neither acute nor subacute transient peripheral neuropathy, nor was this disorder shown during service or within one year after service, nor was it shown to have been caused by the Veteran's military service, including by exposure to Agent Orange.

2.  But additional evidence received since that September 2004 rating decision includes internet information referencing medical data linking Agent Orange exposure to peripheral neuropathy.

3.  The Veteran served in Vietnam during the Vietnam era and, therefore, it is presumed he was exposed to Agent Orange while there.

4.  The most probative evidence of record, however, including the medical specialist's opinion in neurology recently obtained in February 2012 from the Veterans Health Administration (VHA), does not show the Veteran has acute or subacute peripheral neuropathy or that he had peripheral neuropathy of his left lower extremity within one year after service, or that he has peripheral neuropathy of this extremity that is otherwise related or attributable to his military service, including especially to his presumed exposure to Agent Orange in Vietnam.


CONCLUSIONS OF LAW

1.  The September 2004 rating decision denying service connection for peripheral neuropathy of the left lower extremity is final and binding based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2011). 

2.  But there is new and material evidence since that September 2004 decision to reopen this claim for service connection for peripheral neuropathy of the left lower extremity.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011). 

3.  The peripheral neuropathy of this extremity, however, was not incurred in or aggravated by the Veteran's military service and may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2011).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). 

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373- 74 (2002). 

These VCAA notice requirements apply to all five elements of a service-connection claim:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  Further, this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486.

Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

In this case, a letter satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in November 2006, so before initially adjudicating his petition to reopen this claim in March 2007, hence, in the preferred sequence.  The letter informed him of the evidence required to substantiate this claim and of his and VA's respective responsibilities in obtaining this supporting evidence.  The letter also complied with Dingess by as well discussing the "downstream" disability rating and effective date elements of this claim.

In addition, with regards to new and material evidence - the threshold preliminary requirement for reopening this claim since it has been previously considered, denied, and not timely appealed, the November 2006 VCAA notice letter is compliant with the holding in Kent v. Nicholson, 20 Vet. App. 1 (2006), since the letter sufficiently explains the bases of the prior denial of this claim (i.e., the deficiencies in the evidence when this claim was previously considered).  And, ultimately, this is inconsequential in any event because the Board is reopening this claim, regardless.  So even if the Veteran has not received the required Kent notice concerning this claim, this is at most nonprejudicial, i.e., harmless error.  38 C.F.R. § 20.1102. See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating VCAA notice errors in timing or content are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party, the Veteran, not VA, has the evidentiary burden of proof of establishing error and, moreover, above and beyond this, of showing how the error is unduly prejudicial, meaning outcome determinative of his claim).

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of this claim that is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained his service treatment records (STRs), service personnel records (SPRs), and VA treatment records.  He submitted internet articles, medical literature, and personal statements.  

Therefore, the Board is satisfied the RO has made reasonable efforts to obtain any identified medical or other records.  Significantly, neither he nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained and is obtainable. 

And as already alluded to, the Board obtained a medical expert opinion in February 2012 from a VHA physician specializing in neurology.  His opinion is responsive to the determinative issues, both insofar as clarifying when the Veteran's left lower extremity peripheral neuropathy most likely incepted and whether it is the specific type of peripheral neuropathy presumptively associated with exposure to Agent Orange in Vietnam or alternatively directly related to said exposure.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); and 38 C.F.R. § 3.159(c)(4).

The Board is therefore satisfied that VA has provided all assistance required by the VCAA.  38 U.S.C.A. § 5103A. 

II.  The Petition to Reopen this Previously Denied, Unappealed, Claim

Irrespective of the RO's decision concerning whether there is new and material evidence to reopen this claim, so, too, must the Board make this threshold preliminary determination, before proceeding further, because it affects the Board's jurisdiction to adjudicate the claim on its underlying merits. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims); and VAOPGCPREC 05-92 (March 4, 1992).  If the Board determines there is no new and material evidence, that is where the analysis must end, and what the RO determined in this regard is irrelevant because further consideration of the claim is neither required nor permitted.  Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). 

If, on the other hand, the Board determines there is new and material evidence, then the Board must reopen the claim and review the former disposition.  38 U.S.C.A. § 5108. 

When determining whether a claim should be reopened, the Board performs a 
two-step analysis.  The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material."  See 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998).  According to VA regulation, "new" means existing evidence not previously submitted to agency decision makers.  "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a) (2011).  New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  Id.

Second, if VA determines the evidence is new and material, it may then proceed to evaluate the merits of the claim on the basis of the all evidence of record, but only after ensuring the duty to assist has been fulfilled.  See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000).  This second step becomes applicable only when the preceding step is satisfied.  See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). 

In determining whether evidence is new and material, the credibility of this evidence in question is to be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  This presumption only applies when making a determination as to whether the evidence is new and material.  It does not apply when making a determination as to the ultimate credibility and weight of the evidence as it relates to the merits of the claim.  Essentially, the presumption of credibility "dissolves" once the claim is reopened and decided on the merits.  See, too, Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). 

Service connection is granted if it is shown the Veteran has disability resulting from an injury sustained or a disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306. 

Stated somewhat differently, to establish entitlement to service connection, there must be:  (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, 1166-67 (Fed. Cir. 2004). 

Organic diseases of the nervous system, such as peripheral neuropathy, will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 

Also, diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service.  38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6).  Furthermore, even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence establishing he or she was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). 


The following diseases are associated with herbicide exposure for purposes of this presumption:  chloracne or other acneform disease consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, Parkinson's disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma.  38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e) (emphasis added); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010).  These above-listed diseases 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). 

For purposes of presumptive service connection, 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 date of onset.  38 C.F.R. § 3.309(e), Note 2.  VA has specifically determined that "chronic" persistent peripheral neuropathy is not a disease associated with exposure to herbicide agent for purposes of this presumption.  See Health Effects Not Associated With Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540 - 32,553 (June 8, 2010); 72 Fed. Reg. 32,395 - 32,399 (June 12, 2007) (emphasis added). 

However, even if a Veteran is found not entitled to a regulatory presumption of service connection, the claim still must be reviewed to determine whether service connection may be established on a direct-incurrence basis.  Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994).  In fact, the Court has specifically held that the provisions set forth in Combee, which, instead, concerned exposure to radiation, are nonetheless applicable in cases, as here, involving exposure to Agent Orange.  McCartt v. West, 12 Vet. App. 164, 167 (1999).

As for the procedural history of this case, a September 2004 RO decision denied service connection for peripheral neuropathy of the left lower extremity; that decision also denied the claim for the right lower extremity neuropathy.  The Veteran's DD Form 214 confirms he served in Vietnam during the Vietnam era, so it is presumed he was exposed to an herbicide agent - such as Agent Orange, while there.  38 C.F.R. § 3.307(a)(6), 3.313(a).  But, nonetheless, the RO determined in its September 2004 rating decision essentially that his left lower extremity peripheral neuropathy was neither acute nor subacute transient peripheral neuropathy, nor was his peripheral neuropathy shown during service or within one year after service, nor was it shown to have been caused by his military service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

The RO duly notified the Veteran of that decision and apprised him of his procedural and appellate rights, but he did not appeal.  Therefore, that decision is final and binding on him based on the evidence then of record.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103.

That prior September 2004 decision marks the starting point for determining whether there is new and material evidence since that decision to reopen this claim.  See Evans v. Brown, 9 Vet. App. 273, 284 (1996) (indicating that, in making this new-and-material determination, VA adjudicators need only consider the evidence that has been submitted or otherwise obtained since the last final and binding denial of the claim, so irrespective of whether it was a decision on the underlying merits of the claim or, instead, a prior petition to reopen the claim).

Since that September 2004 decision, the Veteran has submitted additional evidence. This additional evidence includes information from the internet, some referencing Agent Orange studies linking exposures to diseases.  Among the internet articles on Agent Orange received in January 2007 is an undated webpage from a private attorney regarding links between Agent Orange and diseases.  The article references various government studies on the issue of exposure to herbicides and mentions that Agent Orange exposure has been linked to neurotoxicity, including to peripheral neuropathy in particular.  Received in July 2008 was an undated article from an organization named:  Vietnam Agent Orange Relief & Responsibility Campaign.  That undated article also indicates that Agent Orange exposure is associated with neurological disorders.  

This additional evidence is certainly new seeing as though it was not previously considered when adjudicating the prior claim in September 2004.  And while it is not in the form of medical treatises, some of it does reference medical information on Agent Orange exposure.  It therefore is material to the disposition of this claim because it constitutes evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim by suggesting a correlation between exposure to herbicides and neurological disorders such as the peripheral neuropathy the Veteran is claiming as affecting his left lower extremity.

Subsequent to the RO's consideration of the petition to reopen this claim, the Court decided the case of Shade v. Shinseki, 24 Vet. App. 110 (2010).  In Shade, the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id., at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) establishes a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim.  Rather, if there is newly submitted evidence of current disability that in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened.  This then triggers VA's duty to assist in providing the claimant with a VA examination.

Here, although the Board has not provided an examination, per se, it has preemptively obtained the VHA medical expert opinion in February 2012.  And while this opinion, as will be explained, is not favorable to the claim, this other medical internet evidence mentioned is, so reason to reopen the claim.

It is important for the Veteran to understand, however, that the standard for reopening a claim is relatively low.  Very narrowly, this evidence raises a reasonable possibility of substantiating his claim.  Thus, this evidence is new and material as contemplated by 38 C.F.R. § 3.156(a) and provides a basis to reopen his claim of service connection for peripheral neuropathy of his left lower extremity, including due to Agent Orange exposure.

Accordingly, this claim is reopened. 38 U.S.C.A. § 5108.  The Board will next readjudicate this claim on its underlying merits, i.e., on a de novo basis.  The Veteran is not prejudiced by the Board's immediate readjudication of this claim because in his written and oral testimony he has evidenced his actual knowledge of the requirements for establishing his underlying entitlement to service connection by associating this condition with his military service, including especially to his presumed exposure to Agent Orange in Vietnam.  See Hickson v. Shinseki, 23 Vet. App. 394 (2010) (Generally, where the Board reopens a claim but the RO did not, the case must be remanded for RO consideration unless there is a waiver from the appellant or no prejudice would result from immediate readjudication of the claim).

III.  Whether Service Connection is Warranted for Peripheral Neuropathy of the Left Lower Extremity, including due to Agent Orange Exposure

Although left lower extremity peripheral neuropathy has been diagnosed, it has not been described as acute or subacute or transient, so not indicated to be the specific type of neuropathy required to be presumptively associated with exposure to Agent Orange in Vietnam.  Indeed, to the contrary, according to the neurologic expert opinion recently obtained in February 2012 from the VHA physician, the Veteran does not have acute or subacute left lower extremity neuropathy as defined by 38 C.F.R. §§ 3.307, 3.309(e).

Instead, according to this commenting VHA medical expert neurologist, the Veteran has chronic slowly progressive peripheral neuropathy of both legs that began on either March 5, 2002 or in June 2003, as noted in the Veteran's forms for compensation and/or pension (VA Form 21-526) he filled out on both March 28, 2004 and December 17, 2007.  The neuropathy continued from onset over 6 to 7 years, worsening over time, requiring higher doses of pain medications.

The commenting VHA medical expert neurologist then goes on to add there is no evidence that the Veteran had a diabetic peripheral neuropathy.  And while the exact etiology of the neuropathy is not certain, according to this neurologist, it is unlikely that the left or right lower extremity peripheral neuropathy is related to the Veteran's military service and specifically to his personal exposure to Agent Orange while stationed in Vietnam.  In closing this VHA medical expert neurologist explains that toxic exposure neuropathies typically begin at the time of maximum exposure to the toxin (i.e., so in this particular instance, would have occurred while the Veteran was in Vietnam in 1967 and 1968).

This commenting VHA medical expert neurologist therefore has completely disassociated the peripheral neuropathy affecting the Veteran's left lower extremity (also that affecting his right, as well) from his military service, including especially from his presumed exposure to Agent Orange in Vietnam.  See Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the Veteran's position).

As this neurologic specialist observed, there is no competent and credible medical or other evidence suggesting, must less indicating, this neuropathy appeared within weeks or months of the Veteran's last exposure to an herbicide agent in Vietnam and resolved within two years of the date of onset.  VA records from 2006 have characterized his peripheral neuropathy as idiopathic, perhaps the reason the VHA medical expert also conceded the exact etiology of the neuropathy is not certain, but the fact remains there is no indication in the record this neuropathy is the acute or subacute type of peripheral neuropathy, and on this latter point the VHA medical expert was much more certain.  It is worth reiterating that a "chronic" persistent peripheral neuropathy, which this VHA medical expert has confirmed is what the Veteran has, is not a disease associated with exposure to herbicide agent for purposes of presumptive service connection.  See again Health Effects Not Associated With Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540 - 32,553 (June 8, 2010); 72 Fed. Reg. 32,395 - 32,399 (June 12, 2007).  So there is no competent and credible medical indication the Veteran's left lower extremity peripheral neuropathy is the type specifically contemplated by the governing regulation.  Therefore, the presumption of service connection due to Agent Orange exposure during service in the Vietnam War is not for application here.  38 C.F.R. § 3.307(a)(6)(ii). 

The Board therefore next turns to consideration of possible entitlement to service connection for the peripheral neuropathy on a direct-incurrence basis, but finds the claim is lacking in this other respect as well.  There is no objective indication the Veteran had any peripheral neuropathy during his service.  His STRs are completely unremarkable for any complaint, treatment, or diagnosis of peripheral neuropathy of the left lower extremity or any other extremity for that matter.  Moreover, even though it is presumed under 38 C.F.R. § 3.307(a)(6) that he was exposed to a toxic herbicide like Agent Orange while in Vietnam, there still has to be some competent and credible medical or other indication that his peripheral neuropathy is a consequence of that exposure.  And the VHA medical expert discredited this notion.

VA clinical records from late 2003 show the Veteran received treatment for a history of pain in his feet and legs since March 2002.  Peripheral neuropathy was the clinical diagnostic assessment.  During a VA general medical examination in September 2004, performed by a certified physician's assistant (PA-C), the diagnosis was peripheral neuropathy more likely than not service connected with Agent Orange.  The examiner subsequently stated that the Veteran was borderline diabetic and that if he was determined to be diabetic or prediabetic then that, too, would be more likely than not related to Agent Orange.  Subsequent VA treatment records through 2009 show the Veteran received treatment for idiopathic peripheral neuropathy.

The Board must weigh the credibility and probative value of all available medical opinions and, in so doing, may favor one medical opinion over another.  See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so).  The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). 

The certified physician assistant's September 2004 opinion is certainly favorable evidence when considering the claim on a direct service connection basis.  However, the Board is unable to attach much probative weight to this opinion.  The VA examination in September 2004 was performed without availability of the Veteran's claims file, including his STRs and other pertinent information on which to base an opinion and make it an informed one.  And while this, alone, is not determinative or dispositive of an opinion's probative value, since there are other ways or means of obtaining a credible history, including of the Veteran's claimed disability, review of the file does prove beneficial if containing information or evidence that, if considered, may change the opinion or undermine the basis of it.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (noting that it is what an examiner learns from the claims file for use in forming the expert opinion that matters and that, when the Board uses facts obtained from one opinion over another, it is incumbent upon the Board to point out those facts and explain why they were necessary or important in forming the appropriate medical judgment). 

Further, the medical examination and opinion were from a physician's assistant, albeit a certified one, but who nonetheless is not an actual physician, and the examination report was not undersigned by a physician.  An opinion may be reduced in value even where the statement comes from someone with medical training, if the medical issue requires special knowledge.  See Black v. Brown, 10 Vet. App. 279 (1997).  See also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches).

Also, the physician assistant's opinion relating the Veteran's peripheral neuropathy to Agent Orange exposure is entirely conclusory, so does not provide any discussion of the supporting rationale or elaborate on why there is the required nexus in this particular instance.  The Court indicated in the Nieves decision that this is where most of the probative value of an opinion is derived.  A medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995); see also Knightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record and conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions). 

The Board therefore places more probative value on the February 2012 VHA medical expert opinion in which the VA neurology chief had opportunity to consider the relevant evidence in the claims file.  And, notably, he cited specific evidence in the file (specific dates when the Veteran had made statements, etc.) as reasons for coming to certain conclusions regarding the etiology and history of this claimed disorder.  In identifying the Veteran's peripheral neuropathy as not acute or subacute, this VA neurologist commented on the history of the Veteran's disorder and what would or would not be expected of this disorder if it was indeed acute or subacute peripheral neuropathy.  As an aside, this is consistent with other VA diagnoses indicating the Veteran's peripheral neuropathy is idiopathic or of unknown cause.  Also, this VHA medical expert made clear that it is unlikely the Veteran's peripheral neuropathy is related to his military service and specifically to his presumed exposure to Agent Orange in Vietnam.  Also, according to this VHA medical expert, there was no evidence the Veteran had diabetic peripheral neuropathy, so not the type of neuropathy that would otherwise warrant presuming it was incurred during his service.  The rationale offered was that toxic exposure neuropathies typically begin at the time of maximum exposure to the toxin (i.e., while in Vietnam in 1967 and 1968). Therefore, the February 2012 VHA medical opinion is based on a review of the claims folder and supported by rationale so, again, most probative when weighing the evidence in this case.

The Veteran has submitted literature purportedly linking peripheral neuropathy to Agent Orange exposure in military service, but this evidence does not refer to the specific facts of his case to show its applicability in this particular instance.  Instead, this evidence only references material that at best suggests rather generic relationships between Veterans with Agent Orange exposure and certain diseases, including neurological disorders and peripheral neuropathy.  Where medical article or treatise evidence, standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay opinion, a claimant may use such evidence to meet the requirement for a medical nexus. Wallin v. West, 11 Vet. App. 509 (1998).  However, an attempt to establish a medical nexus between service and a disease or injury solely by generic information in a medical journal or treatise "is too general and inclusive."  Sacks v. West, 11 Vet. App. 314, 317 (1998) (holding that a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element).  The information here references only and is very general in nature and does not specifically address the details and circumstances of the claimed peripheral neuropathy of the left lower extremity.  The Court has held that "[g]enerally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise 'is too general and inconclusive'". Mattern v. West, 12 Vet. App. 222, 228 (1999).

This also is not a situation where the type of condition at issue is readily amenable to mere lay diagnosis or probative comment on its etiology.  38 C.F.R. § 3.159(a)(1) versus (a)(2).  See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006).  When the determinative issue involves diagnosis or etiology, competent medical evidence generally is required, though not always, so not categorically.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Here though, the Veteran is not competent as a layman to medically opine and attribute his peripheral neuropathy of the left lower extremity to presumed exposure to Agent Orange in Vietnam.  This, instead, is a complex medical determination that necessarily requires medical expertise beyond the scope of mere lay observation or opinion.  He is competent to report having experienced pain or numbness, etc., in his lower extremities, but, as the VHA medical expert observed, even the Veteran himself has only dated his neuropathy back to 2002 or thereabouts, so nowhere near back to his military service that ended many years, indeed decades, earlier in 1969.  And the Board need only consider whether there has been continuity of symptomatology since service, as required by 38 C.F.R. § 3.303(b), when the condition at issue was "noted" during service, which, even by the Veteran's admission, did not occur in this particular instance.  See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997).

In any event, as also explained in Savage, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent", and it is not in this instance.  See also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (indicating certain claimed disabilities, such as rheumatic heart disease, are not conditions readily amenable to lay diagnosis or probative comment on etiology).

Again, the Board is bound by VA regulations, statutes, as well as case law in this matter.  The Board finds that the preponderance of the evidence is against this claim for service connection claim for peripheral neuropathy of the left lower extremity, on either a direct- or presumptive-incurrence basis.  Accordingly, there is no 
reasonable doubt to resolve in the Veteran's favor, and this claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.



ORDER

The claim for service connection for peripheral neuropathy of the left lower extremity, including due to Agent Orange exposure, is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs