Citation Nr: 1304694 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 11-18 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the bilateral hands, to include as due to exposure to herbicides. 2. Entitlement to service connection for peripheral neuropathy of the bilateral feet, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In April 2012, the Veteran testified at a hearing before the Board at the Central Office in Washington, DC. A transcript of the proceeding is of record. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims processing system (Virtual VA) electronic file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue decided herein. The issues of reopening the claims of entitlement to service connection for a malaria type illness and chronic fever/chills have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Specifically, the Veteran's representative raised the issues at the April 2012 Board hearing for the purpose of requesting AOJ referral. In accordance with the undersigned Veterans Law Judge's (VLJ) instructions at that time, the Veteran's representative submitted a written request of the same following the hearing. As the Board does not have jurisdiction over these issues, they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during a period in which exposure to herbicides is presumptive. 2. The Veteran has been shown to have peripheral neuropathy of the bilateral hands and bilateral feet that did not manifest in service, within one year of his last date of exposure to herbicide agents, or within one year of separation, and is unrelated to service. CONCLUSIONS OF LAW 1. Peripheral neuropathy of the bilateral hands was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Peripheral neuropathy of the bilateral feet was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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 seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided prior to an initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran was provided all required VCAA notice in an August 2010 letter, prior to the initial adjudication of the claim in January 2011. The VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran's written statements are also of record. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran has not been afforded a VA examination in this case. For the reasons explained below, no such examination was required because the evidence does not indicate that any of the claimed disabilities, or symptoms thereof, may be associated with the Veteran's service. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran was also afforded an opportunity to present testimony at a hearing before the Board. During the hearing, the undersigned VLJ clarified the issues on appeal, explained the concept of service connection, explained the limitations on the types of procedures performed for compensation and pension examinations, and identified a potential evidentiary deficit. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. In sum, the Board finds that VA has complied with its duty to assist the Veteran. Based on the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Principles Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). To establish a right to compensation for a present disability, a Veteran must show: "(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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required 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, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system (such as peripheral neuropathy), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 shall be presumed to have been exposed during such service to Agent Orange, 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), 3.307(d). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), to include acute and subacute peripheral neuropathy if manifested to a compensable degree within one year of the last date on which the veteran was exposed to an herbicide agent during active service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii). 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. In addition, VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam is not appropriate for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600, 42608 (2002). When a claimed disability is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 Fed.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997) (applying principle to Agent Orange exposure). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran contends that he currently suffers from peripheral neuropathy of his bilateral hands and feet, which he alleges is a result of his active duty service, to include herbicide exposure. As an initial matter, the Board notes that record does not reflect, and the Veteran does not contend that he engaged in combat with the enemy. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not applicable. A review of the Veteran's DD-214 shows the Veteran had a year of service in Vietnam during the course of his active duty between September 1965 and August 1968; the Veteran also reported that this service was from May 1966 to May 1967 in his original claim for compensation in June 2009. Therefore, he is presumed to have been exposed to Agent Orange in Vietnam. At the outset, however, the Board acknowledges that the post-service private medical evidence of record establishes the Veteran's diagnosis of peripheral neuropathy in September 2010, many years after service. The evidence does not reflect, and the Veteran does not contend that he was diagnosed with acute or subacute peripheral neuropathy at any time, to include during the one-year presumptive period following his last exposure to Agent Orange. Peripheral neuropathy that is not acute or subacute in nature is not included in the diseases subject to presumptive service connection due to herbicide exposure for veterans who served in Vietnam. In fact, VA has specifically determined that a presumption of service connection is not warranted based on exposure to Agent Orange for chronic peripheral nervous system disorders, which would include chronic peripheral neuropathy. See Notice, 72 Fed. Reg. 32,395 (June 12, 2007). Therefore, although the Board acknowledges the Veteran's assertions of Agent Orange exposure during service, service connection for peripheral neuropathy of the bilateral hands and feet on this presumptive basis is not warranted. Therefore, the remaining consideration before the Board is whether service connection may be warranted on a direct or a presumptive basis for an organic disease of the nervous system manifest within one year after service. A review of the Veteran's service treatment records shows no in-service complaints, treatment, or diagnosis of peripheral neuropathy. During his June 1964 Army reserve entrance examination and concurrent report of medical history, the Veteran reported past or present foot trouble; the examiner noted mild pes planus with no other relevant serious illness or injury reported. A March 1965 active duty entrance examination continued to show pes planus as the only foot abnormality found on examination. During his June 1968 separation examination, all relevant body systems were indicated to be "normal," including the upper and lower extremities, vascular system, and feet. At that time, the Veteran denied any past or present foot trouble, neuritis, or paralysis. As previously indicated, the post-service medical evidence shows a diagnosis of peripheral neuropathy in September 2010. However, there is no indication in this record that this disorder was related to the Veteran's active service. In a September 2010 written statement, the Veteran's wife noted that the Veteran had suffered from numbness and tingling in his hands for a long time. She noted that he had difficulty picking up and holding objects, as well as his ability to remove hot pans from the oven without heat sensation. In a September 2010 written statement, the Veteran reported that his neurologist diagnosed him with peripheral neuropathy and told him that it would be "hard to tie it to" chemical exposure without further testing to eliminate any other possible causes. This testing would involve the removal of a nerve for study. The Veteran further alleged that his current disorder was related to his service in Vietnam because he shared similar symptomatology with his brother, the only other person in his family with this disorder, who also served in Vietnam. In the Veteran's June 2011 substantive appeal (VA Form 9), the Veteran again noted his exposure to Agent Orange as a result of his Vietnam service. As part of the pre-hearing conference prior to the April 2012 Board hearing, it was clarified that there was no additional written evidence to be submitted at that time. During the hearing, the Veteran testified that his peripheral neuropathy began about 2 1/2 years earlier and had slowly increased in severity, resulting in the loss of sense of touch. He again described the progression of his brother's similar symptomatology, including onset years after Vietnam service, and reported that his brother underwent the nerve biopsy procedure. Thereafter, his brother's Navy doctors told his brother that his disorder was caused by chemical exposure, probably in Vietnam due to the use of DDT insecticide in living quarters, rather than Agent Orange. He also testified that his neuropathist told him that a nerve biopsy would be the only way to tell if the disorder was caused by chemical exposure as opposed to something inherited. See Board Hearing Tr. at 5. In response to a question regarding willingness to undergoing such a biopsy as part of a VA compensation and pension examination from the Veteran's representative, the undersigned VLJ explained that VA would not do an invasive procedure of this nature for such purposes. See Board Hearing Tr. at 6. Upon careful review of the record, the Board finds that service connection for peripheral neuropathy of both the bilateral hands and bilateral feet is not warranted. The Veteran does have a current diagnosis of peripheral neuropathy. Furthermore, the Board acknowledges the Veteran's in-service Agent Orange exposure and possibly alleged other chemical exposure (based on his generalized statement during the Board hearing that in-country soldiers were given DDT in their billets each day). However, there is no competent opinion of record linking the Veteran's current disorder to service. The Veteran is certainly competent to report as to the observable symptoms he experiences, such as an onset of his peripheral neuropathy symptoms, and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Similarly, the Veteran is also competent to report information conveyed to him by his physician, such as a contemporaneous medical diagnosis or opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau and Buchanan). However, the Veteran's statements of record do not establish an in-service onset or continuity of symptoms since service; the record shows that the Veteran is keenly aware that his symptoms did not begin until many years after service. While his wife noted that his symptoms were present for a "long time" in her September 2010 statement, her statement is silent as to a time period in conflict with the Veteran's claimed onset in approximately 2009/2010. In addition, while the Board has considered the Veteran's competent report of information he received related to his current diagnosis and testing necessary to determine etiology from his neurologist, this evidence shows that the neurologist cannot attempt to determine the etiology of his current peripheral neuropathy, which includes possible in-service chemical exposure or an inherited disorder, without further nerve biopsy studies. As such, these statements weigh against a claim link. The Board has also considered the Veteran's assertions as to the similarities in his current disorder to that of his brother's disorder. While the Board acknowledges these assertions, there is no competent evidence of record showing that these general statements of his brother's disorder or related symptomatology apply to the Veteran's specific case. In this regard, the Veteran reported that his neurologist was currently unable to determine the etiology of the disorder in his specific case absent further testing. As such, the Board affords limited probative value to these statements on the issue of a claimed etiology, to the extent the Veteran alleges such a link exists. In addition, the question of whether Agent Orange or other in-service chemical exposure could cause chronic peripheral neuropathy many years after service is a complex medical matter as to an internal medical process that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The Veteran's neurologist is currently unable to provide a medical opinion on this issue absent further testing. Thus, to the extent the Veteran asserts that in-service chemical exposure definitively caused his current peripheral neuropathy, his testimony is in conflict with his neurologist's current determination, and there is no other competent evidence to support such a finding. In regard to service connection on a presumptive basis for an organic disease of the nervous system, there is no competent lay or medical evidence showing the manifestation of such a disease within one year of separation from service. In fact, as noted above, the medical evidence reveals that the Veteran was not diagnosed with peripheral neuropathy until 2010 - nearly 42 years following service. Likewise, while indicating a period of continuous symptoms, the lay statements of record do not allege manifestation within one year of separation. Thus, service connection is not warranted on a presumptive basis. The Board notes that the Veteran was not provided with a VA examination for his current claims. In this regard, VA's duty to assist requires that a VA medical examination be provided or medical opinion obtained when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the appellant's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the appellant's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the medical evidence of record, the Veteran's diagnosis sheet from his private neurologist, does not suggest a nexus between the Veteran's current symptoms and service. In fact, the Veteran reported that his neurologist told him that the etiology of this disorder could not be determined with certainty absent a nerve biopsy procedure. In addition, the Veteran's statements regarding the relation of his case to his brother's disorder have little probative value, as explained above. The record also shows that Veteran has acknowledged a lack of continuity of symptomatology. In light of these considerations, at this point, the Board finds that VA is not required to provide a VA examination in relation to these claims. In the absence of any credible evidence of peripheral neuropathy manifested to a compensable degree within one year of separation, or a relationship between the Veteran's current complaints of peripheral neuropathy and his service, all elements of service connection cannot be met. Coburn, supra. The Board concludes that the preponderance of the evidence is against findings for service connection for peripheral neuropathy of the bilateral hands and bilateral feet. As such, the benefit-of-the-doubt rule does not apply, and the claims are denied. Gilbert, supra. ORDER Entitlement to service connection for peripheral neuropathy of the bilateral hands, to include as due to exposure to herbicides, is denied. Entitlement to service connection for peripheral neuropathy of the bilateral feet, to include as due to exposure to herbicides, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs