Citation Nr: 1301429 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 08-35 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for actinic keratosis, claimed as due to herbicide exposure. 2. Entitlement to service connection for bilateral pes planus. 3. Entitlement to service connection for peripheral neuropathy of the lower extremities, claimed as due to herbicide exposure. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1966 to June 1987. Service in the Republic of Vietnam is indicated by the record. The Veteran is the recipient of the Silver Star Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied the Veteran's claims. The Veteran previously requested a local hearing with a Milwaukee Regional Office Hearing Officer. See the VA Form 9 dated July 2009. In April 2009, the Veteran withdrew that hearing request. In March 2011, the Board remanded the claims currently on appeal for further development. As recounted below, the Board's March 2011 remand directives and the subsequent actions of the RO and VA Appeals Management Center (AMC) need not be discussed. FINDINGS OF FACT 1. In June 2011, prior to the promulgation of a decision in the current appeal, the Veteran requested that his claims to establish service connection for actinic keratosis and bilateral pes planus be withdrawn from appellate review. 2. The Veteran has been shown to have peripheral neuropathy of the lower extremities that is related to his military service. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of a Substantive Appeal with respect to the issues of entitlement to service connection for actinic keratosis, claimed as due to herbicide exposure, and entitlement to service connection for bilateral pes planus have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2012). 2. Resolving reasonable doubt in favor of the Veteran, peripheral neuropathy of the bilateral lower extremities was incurred in active service. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Because the Veteran's claims to establish service connection have either been withdrawn by the Veteran or granted in full by the Board, there is no need to review whether the Board prior remand directive have been substantially completed or whether VA's statutory duties to notify and assist are fully satisfied as any such error would be non-prejudicial. 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); see also Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999), D'Aries v. Peake, 22 Vet. App. 97 (2008). Withdrawn Claims - Actinic Keratosis and Pes Planus A Veteran may withdraw his or her appeal in writing at any time before the Board promulgates a final decision. See 38 C.F.R. § 20.204 (2012). When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. See 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. §§ 20.101, 20.202 (2012). In a statement dated in June 2011, the Veteran requested that his claims to establish service connection for actinic keratosis and bilateral pes planus be withdrawn from appellate review. See a June 2011 statement from the Veteran. In view of his expressed desires, the Board concludes that further action with regard to these issues is not appropriate. The Board does not have jurisdiction over the withdrawn issues, and, as such, these issues are dismissed. Service Connection - Herbicide Exposure Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). However, medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient 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). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Also, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that 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 C.F.R. § 3.307(d)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For purposes of this section, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2. For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that 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). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600-42608 (2002). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). VA regulations require that a veteran have set foot within the land borders of Vietnam for presumptive service connection and that a veteran who never went ashore from the ship on which he served in the Vietnam coastal waters was not entitled to presumptive service connection. Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In Haas, the United States Court of Appeals for the Federal Circuit held that VA's amendment to its Adjudication Procedure Manual excluding veterans who had not set foot in Vietnam was not invalid nor impermissibly retroactively applied. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Discussion The Veteran has asserted that his peripheral neuropathy of the bilateral lower extremities was caused by in-service exposure to herbicides while serving in the Republic of Vietnam. See statements from the Veteran dated in March 2007 and June 2010. Concerning element (1), evidence of a current disability, it is uncontroverted that the Veteran has been diagnosed with peripheral neuropathy of the bilateral lower extremities. See e.g., VA examination reports dated in August 2007, May 2010 and April 2011 as well as a private treatment record dated in June 2008. Accordingly, element (1) has been demonstrated. With regard to element (2), evidence of an in-service injury or disease, the Board notes that the Veteran's service treatment records are devoid of any in-service instance of complaints of or treatment for peripheral neuropathy of either lower extremity. However, as noted by the Board in the March 2011 remand, the Veteran's service records reflect that he served in the Republic of Vietnam from July 1968 to August 1969. As such, it is presumed that the Veteran was exposed to herbicides, and element (2) has been demonstrated. See 38 C.F.R. § 3.307(a)(6)(iii) (2012). As noted above, peripheral neuropathy is not among the presumptive diseases listed in 38 U.S.C.A. § 1116(a)(2), 38 C.F.R. §§ 3.307(a)(6) and 3.309(e). However, the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude an appellant from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Concerning element (3), medical evidence of a nexus between the claimed in-service disease or injury and the current disability, the Board notes that there are several nexus opinions of record. The Board will address these opinions in turn. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). In evaluating the probative value of competent medical evidence, the Court has stated in pertinent part: "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... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator..." See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board has reviewed the conflicting evidence of record and notes certain strengths and weaknesses with each of the opinions. See Evans v. West, 12 Vet. App. 22, 30 (1998) (the Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim). In support of his claim, the Veteran submitted a June 2007 opinion from R.S.H., M.D., who opined that the Veteran's peripheral neuropathy of the bilateral lower extremities was at least as likely caused by his service. See a June 2007 statement from R.S.H., M.D. However, since the private physician did not provide a rationale for his opinion, it is of little probative weight. Bloom v. West, 12 Vet. App. 185, 187 (1999) (holding that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."); see also Black v. Brown, 5 Vet. App. 177, 180 (1995); 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). An August 2007 VA examination report reflects that, after a review of the Veteran's VA claims file as well as a physical examination of and interview with the Veteran, the examiner stated that the Veteran's bilateral foot pain was not the result of his service. However, it appears that this opinion addresses the Veteran's claim to establish service connection for bilateral pes planus rather than peripheral neuropathy of the bilateral lower extremities. See the August 2007 VA examination report. As such, this opinion is not for consideration in connection with the present claim. Thereafter, the Veteran submitted a September 2008 statement from R.S.H., M.D., in which the physician opined that the Veteran's peripheral neuropathy of the bilateral lower extremities was at least as likely as not caused by his in-service exposure to herbicides. See the September 2008 statement from R.S.H., M.D. Again, since the private physician did not provide a rationale for his opinion, it is of little probative weight. Bloom, Black, Knightly and Miller, all supra. Although the Veteran was afforded a Agent Orange Protocol examination in October 2009, the examiner did not offer an opinion concerning the etiology of his diagnosed peripheral neuropathy of the bilateral lower extremities. A May 2010 VA examination report reflects that, after a review of the Veteran's VA claims file as well as a physical examination of and interview with the Veteran, the examiner stated that the Veteran's peripheral neuropathy of the bilateral lower extremities was not caused by in-service exposure to extreme cold. It appears that this opinion was offered in connection with the Veteran's claim to establish service connection for residuals of cold injuries of the lower extremities which was denied by the Board in March 2011. Indeed, the May 2010 VA examiner did not address a possible connection between the Veteran's peripheral neuropathy of the bilateral lower extremities and his presumed in-service exposure to herbicides. See the May 2010 VA examination report. As such, this opinion is not for consideration in connection with the present claim. An April 2011 VA opinion reflects that, after a review of the Veteran's VA claims file, the examiner opined that the Veteran's peripheral neuropathy of the bilateral lower extremities was not caused by his presumed in-service exposure to herbicides. In providing this opinion, the examiner reasoned that, since the evidence of record failed to reflect evidence of peripheral neuropathy of the bilateral lower extremities during the Veteran's service or until "perhaps around 2000," the disorder was not the result of the Veteran's presumed in-service exposure to herbicides. See the April 2011 VA opinion. Thereafter, the Veteran submitted an April 2011 statement from R.S.H., M.D., in which the physician opined that the Veteran's peripheral neuropathy of the bilateral lower extremities was at least as likely as not the result of his in-service exposure to herbicides. In providing this opinion, R.S.H., M.D., noted that VA does not recognize a causal relationship between herbicides and "delayed [-] onset polyneurpathies," but stated that, after many years of treatment, to include the completion of various tests, other possible etiologies had been ruled out, to include diabetes, heavy metal exposure, paraproteinemias, autoimmune disorders, vitamin deficiencies, metabolic disorders and familial causation. See the April 2011 statement from R.S.H., M.D. The Board notes that R.S.H., M.D. did not review the Veteran's complete VA claims file prior to providing the opinions recounted above. However, the Court has firmly held that "the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed." Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Indeed, in his statements, R.S.H., M.D. made several references to the Veteran's military history, to include his presumed exposure to herbicides while in the Republic of Vietnam, which were congruent with the evidence of record. Based on the foregoing, there is at least an approximate balance of positive and negative evidence regarding the issue at hand, and the Board finds that the evidence raises at least a reasonable doubt as to whether the Veteran's peripheral neuropathy of the bilateral lower extremities is the result of the Veteran's service, to include his presumed exposure to herbicides. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Further, the Court specifically indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against a Veteran's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Thus, for the reasons described above, the Board concludes that there is a reasonable doubt as to whether the Veteran's peripheral neuropathy of the bilateral lower extremities is the result of the Veteran's service, to include his presumed exposure to herbicides. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for peripheral neuropathy of the bilateral lower extremities is warranted. ORDER Entitlement to service connection for actinic is dismissed Entitlement to service connection for bilateral pes planus is dismissed. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is granted, subject to the laws and regulations controlling the award of monetary benefits. ____________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs