Citation Nr: 1300147 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 10-29 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a bilateral eye disorder. 2. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to inservice exposure to Agent Orange. 3. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to inservice exposure to Agent Orange. 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to inservice exposure to Agent Orange. 5. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to inservice exposure to Agent Orange. 6. Entitlement to service connection for a liver disorder, to include residuals of a liver transplant. 7. Entitlement to service connection for a kidney disorder, to include residuals of a kidney transplant. ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi (RO). The issue of entitlement to service connection for a bilateral eye disorder is remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The medical evidence of record does not show a current diagnosis of peripheral neuropathy of the left upper extremity. 2. The medical evidence of record does not show a current diagnosis of peripheral neuropathy of the right upper extremity. 3. The medical evidence of record does not show a current diagnosis of peripheral neuropathy of the left lower extremity. 4. The medical evidence of record does not show a current diagnosis of peripheral neuropathy of the right lower extremity. 5. The evidence of record does not demonstrate that the Veteran's current liver disability is related to his active duty service. 6. The evidence of record does not demonstrate that the Veteran's current kidney disability is related to his active duty service. CONCLUSIONS OF LAW 1. Peripheral neuropathy of the left upper extremity was not incurred in or aggravated by active military service and may not be presumed to have been so incurred, to include as due to exposure to Agent Orange during active military service. 38 U.S.C.A. §§ 1101, 1110, 1116, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Peripheral neuropathy of the right upper extremity was not incurred in or aggravated by active military service and may not be presumed to have been so incurred, to include as due to exposure to Agent Orange during active military service. 38 U.S.C.A. §§ 1101, 1110, 1116, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. Peripheral neuropathy of the left lower extremity was not incurred in or aggravated by active military service and may not be presumed to have been so incurred, to include as due to exposure to Agent Orange during active military service. 38 U.S.C.A. §§ 1101, 1110, 1116, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 4. Peripheral neuropathy of the right lower extremity was not incurred in or aggravated by active military service and may not be presumed to have been so incurred, to include as due to exposure to Agent Orange during active military service. 38 U.S.C.A. §§ 1101, 1110, 1116, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 5. A liver disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 6. A kidney disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Prior to the initial adjudication of the Veteran's claims, an April 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009). The Veteran's service treatment records, VA treatment records, and identified private medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In October 2010, the RO requested the Veteran's records from the Social Security Administration (SSA). However, the SSA responded that they did not have any relevant records. VA did not provide the Veteran with VA examinations with regard to his claims. However, VA examinations were not warranted in this case, as there is no medical evidence diagnoses of peripheral neuropathy of the upper extremities or the lower extremities, there is no evidence that the Veteran's liver disorder was diagnosed within one year of service discharge, and there is no evidence suggesting a link between the Veteran's liver disorder or kidney disorder and his active duty service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Accordingly, VA examinations were not warranted in this case. There is no indication in the record that any other additional evidence relevant to the issues decided herein is available and not part of the claims file. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran contends that service connection is warranted for his peripheral neuropathy of the upper and lower extremities, his liver disorder, and his kidney disorder. He contends that his peripheral neuropathy was caused by inservice exposure to herbicide agents. 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; 38 C.F.R. § 3.303(a). Service connection for certain chronic diseases, including cirrhosis of the liver, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any 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). Pursuant to 38 C.F.R. § 3.303(b), VA may award service connection where a claimant can demonstrate "(1) that a condition was 'noted' during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant may rely on lay evidence "to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492, F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). "[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). I. Peripheral Neuropathy The Veteran contends that service connection is warranted for peripheral neuropathy of the upper and lower extremities as a result of inservice exposure to Agent Orange. VA regulations provide that if a veteran was exposed to an herbicide agent (Agent Orange) during active service, service connection is presumed for the following disorders: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus, type 2, Hodgkin's disease, all chronic B-cell leukemias, 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), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), Parkinson's disease, and ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii); 38 C.F.R. § 3.309. VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for: hepatobiliary cancers; nasal and/or nasopharyngeal cancer; bone and joint cancer; breast cancer; female reproductive cancers; urinary bladder cancer; renal cancer; testicular cancer; leukemia, other than chronic lymphocytic leukemia (CLL); abnormal sperm parameters and infertility; Parkinson's Disease and Parkinsonism; Amyotrophic Lateral Sclerosis (ALS); chronic persistent peripheral neuropathy; lipid and lipoprotein disorders; gastrointestinal and digestive disease including liver toxicity; immune system disorders; circulatory disorders; respiratory disorders (other than certain respiratory cancers); skin cancer; cognitive and neuropsychiatric effects; gastrointestinal tract tumors; brain tumors; AL amyloidosis (also referred to as primary amyloidosis); endometriosis; adverse effects on thyroid homeostasis; and, any other condition for which VA has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630-27641 (May 20, 2003); see also Notice, 67 Fed. Reg. 42600 (June 24, 2002); Notice, 66 Fed. Reg. 2376 (Jan. 11, 2001); Notice, 64 Fed. Reg. 59232 (November 2, 1999). A "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In April 2009, the National Personnel Records Center (NPRC) confirmed that the Veteran had active duty service in Vietnam from August 15, 1968 to April 14, 1969. Therefore, he is presumed to have been exposed to herbicide agents during his active duty service. Additionally, acute and subacute peripheral neuropathy are among the diseases or disorders eligible for presumptive service connection based on exposure to Agent Orange. 38 C.F.R. § 3.309. 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, Note 2. As noted above, VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for chronic persistent peripheral neuropathy. See Notice, 68 Fed. Reg. 27630-27641 (May 20, 2003); see also Notice, 67 Fed. Reg. 42600 (June 24, 2002); Notice, 66 Fed. Reg. 2376 (Jan. 11, 2001); Notice, 64 Fed. Reg. 59232 (November 2, 1999). After a thorough review of the evidence of record, service connection for peripheral neuropathy of the bilateral upper extremities and the bilateral lower extremities is not warranted. Review of the medical evidence of record does not reflect that the Veteran has a current diagnosis of peripheral neuropathy of the upper and lower extremities. The VA treatment records and the private medical treatment records in the Veteran's claims file are negative for any diagnoses of peripheral neuropathy of the upper or lower extremities. Further, the medical evidence of record does not identify any complaints of or treatment for symptoms typically associated with peripheral neuropathy, including pain, numbness, or tingling in the extremities, and the Veteran does not allege that he has those symptoms. In fact, a June 2002 VA treatment record reflects that the Veteran denied numbness, tingling, dizziness, and syncope. Examination of the extremities revealed positive peripheral pulses and no edema. Without a current disability, there can be no entitlement to compensation. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of present disability there can be no valid claim." Brammer, 3 Vet. App. at 225. Although the Veteran is presumed exposed to herbicide agents during service and acute and subacute peripheral neuropathy is a disease for which presumptive service connection may be granted based on exposure to herbicide agents, there is no evidence of record establishing that the Veteran currently has peripheral neuropathy of the upper and lower extremities. Thus, service connection is not warranted on a presumptive basis. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined 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. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). However, in the absence of a current disability, service connection is also not warranted on a direct basis. Thus, as there is no evidence that the Veteran has peripheral neuropathy of the upper and lower extremities, service connection on a direct basis is not warranted. See Brammer, 3 Vet. App. at 225. In reaching this decision the Board considered the doctrine of reasonable doubt. However, as there is no evidence that the Veteran has a disability diagnosed as peripheral neuropathy of the upper and lower extremities, the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application, and service connection for peripheral neuropathy of the bilateral upper and lower extremities is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). II. Liver Disorder and Kidney Disorder The Veteran also contends that service connection for a liver disorder, including residuals of a liver transplant, and service connection for a kidney disorder, including residuals of a kidney transplant, is warranted. The Veteran's service treatment records are negative for any complaints of or treatment for a liver disorder or a kidney disorder. A December 1965 entrance examination reflects that the abdomen and viscera and the genitourinary systems were normal. In a report of medical history, completed at that time, the Veteran denied a history of stomach, liver, or intestinal trouble. Similarly, an April 1969 separation examination reveals that the abdomen and viscera as well as the genitourinary systems were normal. VA treatment records from October 1999 through January 2008 reveal diagnoses of and treatment for liver disease and kidney disease. In October 1999, the Veteran underwent a colonoscopy. The results showed a five millimeter sigmoid polyp, which was removed and retrieved; a few sigmoid diverticula; and internal hemorrhoids. The physician who performed the procedure recommended that the Veteran follow up at the liver clinic in two weeks regarding possible increased ascites. In November 1999, the Veteran reported a history of alcohol abuse with treatment, but reported that he was not drinking at that time. Private treatment records from February 2000 through June 2000 reflect that the Veteran underwent a liver transplant in May 2000. The treatment records explain that the Veteran had "end-stage liver disease secondary to alcohol." He presented with a chief complaint of hepatic encephalopathy in February 2000. The records indicate that he had a history of upper gastrointestinal bleed in August 1998 and admission in November 1999 for hepatic encephalopathy and refractory ascites. A November 1999 ultrasound showed cirrhosis without focal lesions, patent vessels, splenomegaly, and large ascites. He had documented esophageal varices, grade 3-4, and multiple esophagogastroduodenoscopies for banding. The treatment records reflect that the Veteran had a history of alcohol abuse, and that his last drink was in August 1998. The diagnoses included end-stage liver disease and alcoholic cirrhosis. The private treatment records also reflect that the Veteran had "end stage renal disease secondary to alcohol" and reflect that he underwent a cadaveric renal transplant in May 2000. VA treatment records beginning in June 2002 through January 2008 reflect that the Veteran reported a history of liver and kidney transplant. The records note that the liver transplant "was due to alcoholic liver disease and kidney transplant due to kidney failure due to his liver disease." A January 2006 record states that the Veteran had "no problems since the transplantation." The Veteran regularly denied any problems related to his liver transplant or kidney transplant, and he was reported to be stable. After a thorough review of the evidence of record, the Board finds that the evidence does not support entitlement to service connection for a liver disorder or a kidney disorder. There are current diagnoses of residuals of liver and kidney transplant, as well as alcoholic cirrhosis of the liver. Degmetich, 104 F.3d at 1333 (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Cirrhosis of the liver was not diagnosed within one year of service discharge. Accordingly, service connection is not warranted on a presumptive basis. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran's service treatment records are negative for any complaints of or treatment for a liver or kidney disorder during service. Additionally, the Veteran has not reported that he had symptoms of a liver or kidney disorder during service, or that an event which occurred during service caused his current liver or kidney disorders. Accordingly, the evidence does not show in-service incurrence of a liver or kidney disorder. In addition, the medical evidence of record does not show that the Veteran's liver or kidney disorders are related to his active duty service. There is no medical evidence of record which relates the Veteran's current liver or kidney disorders to his active duty service or to any incident therein. In fact, the VA and private medical treatment records in the claims file state that the Veteran's liver and kidney disease were caused by a history of alcohol abuse. Only independent medical evidence may be considered to support Board findings. The Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, there is no medical evidence of record linking the Veteran's current liver or kidney disorders to service or to any incident of service. This lack of cognizable evidence is particularly dispositive, as the first medical evidence of record for a liver or kidney disorder was in 1998, over 29 years after the Veteran's period of service ended. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Moreover, the Veteran has not provided any lay statements that he has experienced symptoms of a liver or kidney disability continuously since service discharge, and there is no medical evidence suggesting that he has had symptoms of a kidney or liver disorder continuously since service discharge. Although the Veteran may believe that his liver disorder and kidney disorders are related to his active duty service, he is not competent to provide such an opinion. Medical causation involves questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. Because the Veteran is not a physician, his statements are not competent evidence that his current liver or kidney disorders are related to active duty service. See Barr, 21 Vet. App. at 307 (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions); see also Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). As there is no competent, credible, and probative evidence that the Veteran's current liver or kidney disorders are related to his active duty service, service connection for a liver disorder and a kidney disorder is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. Gilbert, 1 Vet. App. at 58. ORDER Service connection for peripheral neuropathy of the left upper extremity is denied. Service connection for peripheral neuropathy of the right upper extremity is denied. Service connection for peripheral neuropathy of the left lower extremity is denied. Service connection for peripheral neuropathy of the right lower extremity is denied. Service connection for a liver disorder is denied. Service connection for a kidney disorder is denied. REMAND Review of the evidence of record reflects that there are additional private and VA treatment records identified by the evidence of record which are pertinent to the Veteran's claim for entitlement to service connection for a bilateral eye disorder and have not yet been associated with the claims file. Specifically, the VA treatment records in the file reflect that the Veteran underwent surgery for a detached retina in May 2003 and cataract surgery in February 2004. The treatment records from those surgeries have not been obtained and associated with the claims file. Specifically, he indicated that he had retinal surgery by Dr. Gordon at Methodist University. Additionally, the VA treatment records note the Veteran's reports that he sought treatment for his eye disabilities from private physicians, including Dr. Linn and Dr. Smith. The treatment records from those private physicians are not in the claims file. Accordingly, the RO should obtain those records. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran to provide him an opportunity to identify all VA and non-VA medical providers who have treated him for his bilateral eye disorder since service discharge. The RO must then attempt to obtain copies of the related medical records that are not already in the claims file, to include all private treatment records from Dr. Linn, Dr. Smith, Dr. Gordon, and Methodist University. Regardless of whether the Veteran responds, the RO must obtain all VA treatment records related to the Veteran's bilateral eye disorder since service discharge. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts to obtain the named records, the RO is unable to secure same, the RO must notify the Veteran and his representative and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. After completing the above, reviewing the additional evidence submitted, and conducting any other development that may be indicated, the RO must readjudicate the Veteran's claim. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs