Citation Nr: 1311443	
Decision Date: 04/05/13    Archive Date: 04/19/13

DOCKET NO.  10-08 263	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in St. Petersburg, Florida


THE ISSUE

1.  Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, claimed as due to herbicide exposure.

2.  Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, claimed as due to herbicide exposure.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel


INTRODUCTION

The Veteran had active service from July 1963 to January 1967. 

This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the RO in St. Petersburg, Florida. 

The Veteran has been afforded hearings before an RO Decision Review Officer (DRO) in January 2010, and before a Veterans Law Judge (VLJ) of the Board in November 2011, in which he presented oral argument in support of his service connection claims.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  

Here, during the two hearings, the VLJ and DRO noted the basis of the prior determination and noted the element of the claims that was lacking to substantiate the claims for benefits, specifically, a nexus between current peripheral neuropathy and service.  In addition, the VLJ and DRO sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board and DRO hearings.  By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claims for benefits, stating that doctors told him that his peripheral neuropathy was related to Agent Orange.  As such, the Board finds that, consistent with Bryant, the VLJ and DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record.  

The Board remanded this appeal to the RO (via the Appeals Management Center (AMC)) for additional development in February 2012 and November 2012.  The case was subsequently returned to the Board.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran served in the Republic of Vietnam during the Vietnam era; therefore, exposure to an herbicide agent (the dioxin in Agent Orange) is presumed.

2.  The weight of the probative (meaning competent and credible) evidence of record indicates the Veteran's current idiopathic peripheral neuropathy of the upper and lower extremities began years after service and is not related to service, including to herbicide exposure.


CONCLUSION OF LAW

Peripheral neuropathy of both upper and lower extremities was not incurred in or aggravated by service, nor may it be presumed to have been so incurred, including as a result of his presumed exposure to herbicides (Agent Orange) in Vietnam.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 




REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist

VA has duties to notify and assist the Veteran in substantiating these claims for VA benefits.  38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a).  Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record:  (1) that is necessary to substantiate these claims; (2) that VA will obtain and assist him in obtaining; and (3) that he 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 readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), so 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). 

Here, a May 2009 letter was sent to the Veteran prior to the September 2009 rating decision on appeal, i.e., in the preferred sequence.  This letter informed him of the type of information and evidence required to substantiate the claims for service connection, and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence.  He was also advised of the downstream disability rating and effective date elements of these claims in this letter.  See Dingess/Hartman, supra.  Additional letters were sent to the Veteran in February 2012 and January 2013, after the rating decision on appeal.  

Therefore, the Veteran has received all required VCAA notice concerning these claims.  Moreover, he has not alleged any prejudicial error in the content or timing of the VCAA notice he received.  As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), he, not VA, has this burden of proof of showing there is a VCAA notice error in timing or content and, moreover, above and beyond this, that it is unduly prejudicial - meaning outcome determinative of his claims.  Thus, absent this pleading or showing, the duty to notify has been satisfied.

VA also fulfilled its duty to assist the Veteran with these claims by obtaining all potentially relevant evidence, which 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).  To this end, the RO obtained his service treatment records (STRs) and VA medical records, and arranged for a VA compensation examination and obtained VA medical opinions regarding the claims.  The Veteran has submitted letters from a private physician, an acupuncturist, and a massage therapist.  He testified in support of his claims at hearings before a DRO of the RO, and before the undersigned Veterans Law Judge, and transcripts of these hearings are on file.  

Additionally, there are medical nexus opinions on file addressing the etiology of his claimed disabilities of peripheral neuropathy of both upper and lower extremities, including VA examination reports, including VA medical opinions obtained pursuant to the Board's February 2012 and November 2012 remands.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  The Board finds that the January 2013 medical opinion is adequate, as the examiner considered his prior physical examination of the Veteran in April 2012, and the medical evidence of record as well as the Veteran's statements in proffering his opinion, which included clear conclusions and supporting data with a reasoned medical explanation connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Therefore, VA has complied with its duty to assist in obtaining an adequate medical opinion.

There also was compliance with the Board's prior remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47   (1999) (indicating there need only be "substantial," not "exact", compliance); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  This case was remanded for a VA examination and medical opinion, and to obtain additional VA and private medical records.  As noted, a medical examination and opinion were obtained, as were VA medical records.  Although the Veteran was asked to submit a release in order to enable VA to obtain private treatment records from his private medical providers, he has not submitted such a release.  Instead, he submitted a duplicate copy of a March 2012 letter from his private physician.

The Board concludes that all the available records and medical evidence have been obtained in order to make a determination as to these claims.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims.

Law and Regulations

Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306.  Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). 

Certain chronic diseases, such as organic diseases of the nervous system and amyotrophic lateral sclerosis (ALS), will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent within one year after service.  This presumption, however, is rebuttable by probative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

To establish entitlement to service connection, there must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

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).  This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease.  38 C.F.R. § 3.307(a)(6)(ii).  Furthermore, even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he is presumed to have been exposed to herbicides if he served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence establishing 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). 

The diseases presumptively associated with herbicide exposure include 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 C.F.R. § 3.309(e) (2012).  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; Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).

In September 2011, the National Academy of Sciences (NAS) issued Veterans and Agent Orange:  Update 2010 (Update 2010).  The Secretary of VA has determined, based upon Update 2010 and prior NAS reports, that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for the following health outcomes:  hypertension, cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), or nasal cavity (including ears and sinuses), cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs, cancers of the digestive organs (esophageal cancer; stomach cancer; colorectal cancer (including small intestine and anus), hepatobiliary cancers (liver, gallbladder and bile ducts), and pancreatic cancer), bone and joint cancer, melanoma, non-melanoma skin cancer (basal cell and squamous cell), breast cancer, cancers of reproductive organs (cervix, uterus, ovary, testes, and penis; excluding prostate), urinary bladder cancer, renal cancer (kidney and renal pelvis), cancers of brain and nervous system (including eye), endocrine cancers (including thyroid and thymus), leukemia (other than all chronic B-cell leukemias including chronic lymphocytic leukemia and hairy cell leukemia), cancers at other and unspecified sites (other than those as to which the Secretary has already established a presumption), reproductive effects (including infertility, spontaneous abortion other than after paternal exposure to TCDD; and - in offspring of exposed people - neonatal death, infant death, stillborn, low birth weight, birth defects (other than spina bifida), and childhood cancer (including acute myeloid leukemia)), neurobehavioral disorders (cognitive and neuropsychiatric), neurodegenerative diseases (including amyotrophic lateral sclerosis, but excluding Parkinson's disease), chronic peripheral nervous system disorders (other than early-onset peripheral neuropathy), respiratory disorders (wheeze or asthma, chronic obstructive pulmonary disease, and farmer's lung), gastrointestinal, metabolic, and digestive disorders (including changes in liver enzymes, lipid abnormalities, and ulcers), immune system disorders (immune suppression, allergy, and autoimmunity), circulatory disorders (other than ischemic heart disease), endometriosis, effects on thyroid homeostasis, hearing loss, eye problems; and bone conditions.  See 59 Fed. Reg. 341 (Jan. 4, 1994); 61 Fed. Reg. 41,442  (Aug. 8, 1996); 64 Fed. Reg. 59,232 (Nov. 2, 1999); 67 Fed. Reg. 42,600 (June 24, 2002); 68 Fed. Reg. 27,630  (May 20, 2003); 72 Fed. Reg. 32,395  (June 12, 2007); 75 Fed. Reg. 32,540 (June 8, 2010); 75 Fed. Reg. 81,332 (Dec. 27, 2010). 

Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

When determining service connection, all theories of entitlement - direct, presumptive and secondary, must be considered.  Szemraj v. Principi, 357 F.3d 1370, 1371   (Fed. Cir. 2004).

If chronicity (i.e., permanency) of disease or injury in service is not shown, or is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b).  The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  However, peripheral neuropathy, as an organic disease of the nervous system, is such a chronic condition under 38 C.F.R. § 3.309(a).  

Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b)  is an alternative method of satisfying the second and third Shedden requirements to establish chronicity (permanency) of disease or injury in service and, in turn, link the currently claimed disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).

To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 38 C.F.R. § 3.303(b).  Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  Id.  

A layperson is generally incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404   (1998).  However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears), etc.), (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.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In essence, lay testimony is competent when it is in regard to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  See also 38 C.F.R. § 3.159(a)(2).  A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation).  See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).

So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 

Peripheral Neuropathy of the Upper and Lower Extremities

The Veteran contends that he incurred peripheral neuropathy of both upper and lower extremities, due to Agent Orange (herbicide) exposure during his service in Vietnam.

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

The Veteran's exposure to herbicides is presumed, as service personnel records show that he served in the Republic of Vietnam from January 1966 to January 1967, during the Vietnam era.  See 38 C.F.R. § 3.2(f).

Medical evidence on file shows a current disability of idiopathic peripheral neuropathy.  So resolution of this appeal turns on whether this disorder is attributable to the Veteran's military service - either directly, presumptively, or secondarily by way of a service-connected disability.  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.").  See also Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548  (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998).

The Veteran's claimed disability, chronic peripheral neuropathy of the bilateral upper and lower extremities, is not classified as one of the enumerated diseases associated with herbicide exposure under 38 C.F.R. § 3.309(e) (2012).  

In accordance with section 3 of the Agent Orange Act of 1991, Pub. L. 102-4, 105 Stat. 11, the Secretary has entered into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in the Republic of Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure.  As required by the statute and agreement, the NAS submits a report to the Secretary every two years regarding the results of their review and summarization of the medical literature.  

The Secretary of VA has determined, based upon Update 2010 and prior NAS reports, that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for chronic peripheral nervous system disorders (other than early-onset peripheral neuropathy).  NAS concluded that early onset peripheral neuropathy associated with herbicide exposure is not necessarily a transient condition.   In Update 2010, NAS reaffirmed the conclusion in its prior reports that data did not suggest that exposure to herbicides led to the development of delayed-onset chronic peripheral neuropathy.  There is also no evidence of acute or subacute peripheral neuropathy.  Thus, service connection is not warranted for the claimed chronic peripheral neuropathy of both upper and lower extremities based on presumed herbicide exposure under 38 C.F.R. § 3.309(e).  Moreover, there is no evidence that an organic disease of the nervous system was manifested to a compensable degree within the first post-service year, and thus presumptive service connection is also not warranted under 38 C.F.R. § 3.309(a). 

This only precludes presumptive service connection.  The Veteran may still establish the necessary linkage for service connection with proof of direct causation.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

In determining whether statements submitted or made by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).  See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, 
self-interest, malingering, desire for monetary gain, and witness demeanor).

The Veteran's STRs are negative for peripheral neuropathy.  On separation medical examination in October 1966, his upper and lower extremities and neurologic system were all normal.  In an October 1966 report of medical history, he denied neuritis.

The post-service evidentiary record shows that the first medical evidence of peripheral neuropathy is dated in 2005.  A January 2005 VA outpatient treatment record reflects that the Veteran presented with a history of peripheral polyneuropathy.  He said he was extensively worked up for his polyneuropathy in the private sector several years ago, and his symptoms were getting worse with increased muscle atrophy and contracture of the small muscles of the hands.  The Veteran said he did not want any work-up or referral to the neurology department.  He gave a history of Agent Orange exposure during active service.  The physician diagnosed left knee joint pain, rule out degenerative joint disease, and history of peripheral polyneuropathy.

Later records show that in April 2009, the Veteran complained of "Agent Orange deterioration" described as upper extremity weakness, history of neuropathy, muscle wasting, and progressive worsening of dexterity in both hands, which had its onset around 1986, almost 20 years post-service.  He said he was evaluated by a neurologist in the past, but denied any specific diagnosis.  The examiner diagnosed neuropathy, and noted that the Veteran refused to have a nerve conduction velocity (NCV) test, as it was too painful.  The Veteran said he did not recall where his previous neurology evaluation was done.  The examiner also diagnosed a musculoskeletal disorder, with an unclear diagnosis.  

A June 2009 VA neurology consultation reflects that the Veteran reported that he was exposed to Agent Orange in Vietnam.  He stated that in 1986, he began having atrophy and shrinkage of the muscles of his hands and arms.  He reported that he had current investigations through prominent medical specialists throughout the country, but nobody had given him a specific diagnosis, although they had blamed it on the possibility of Agent Orange.  After a physical examination, the neurologist indicated a diagnostic impression of rule out neuromuscular disorder, the possibility of ALS or posterolateral sclerosis.  Additional testing, including an electromyography and magnetic resonance imaging (MRI) scan of the brain and cervical spine, was planned.

An August 2009 VA social worker's note reflects that the Veteran reported increasing physical functioning limitations related to muscle loss, knee pain and peripheral vascular disease secondary to Agent Orange exposure which had been increasing since the 1980s.  He said he did not previously apply for service connection as he was formerly financially secure.  A September 2009 VA outpatient treatment record reflects that the Veteran had been referred to neurology for testing, but had cancelled the scheduled electromyography that was ordered by his neurologist.

An October 2009 physician's note from a VA doctor (Dr. P.) reflects that this was his first visit with the Veteran, who asked him for a letter stating that he was disabled due to peripheral neuropathy, because he had been late for a legal appointment due to his disability.  Additional testing was planned.  In October 2009, Dr. P. wrote a letter stating that the Veteran had been a patient at the Sarasota Community Based Outpatient Clinic (CBOC) since 2003 and that he had peripheral neuropathy affecting the hands, arms, and legs.  

At his January 2010 RO hearing, the Veteran reiterated many of his assertions.  He testified that he did not have any problems with his arms and legs at the time of his service discharge in 1967, and that he first noticed problems with his extremities in 1986.  He said that at that time, he was examined by many experts all around the country, and no one could tell him anything except they thought it might be ALS, but this was ruled out, because some of his muscles were intact.  He said he finally found out he had peripheral neuropathy in approximately 1989, and he found out from another patient, not from a doctor.  He said he had a nerve conduction study by a private medical provider in the early 1990s.  He said he did not recall who performed the test, and he did not have the records.  He stated that he first sought VA treatment in 2003, 2004 or 2005.  He said his VA physician told him his condition was due to dioxin/Agent Orange exposure.

In an undated letter to a Congressman that was received by VA in January 2010, the Veteran's private physician, J.P.M., MD, stated that the Veteran was exposed to Agent Orange and was rapidly becoming increasingly disabled as a result.  His arms were withered and his ability to hold things in his hands decreased daily.  Dr. M. said that it was absurd that the Veteran's disability claim had been denied on the basis that he needed to apply within one year of the exposure, since "...the symptoms of exposure to Agent Orange do not appear until 10 to 20 years later.  He did not know that he had been affected until his muscles began to deteriorate in 1986 even though he was exposed in 1966.  He has been dealing with this disabling condition for 24 years."

In a subsequent opinion dated in October 2010, the same VA physician (Dr. P.) opined that the Veteran's peripheral neuropathy was more likely than not the result of his exposure to Agent Orange while stationed in Vietnam as there did not appear to be any other causative factor which could lead to any other plausible conclusion.  In a subsequent October 2010 VA physician's note, Dr. P. noted loss of muscle mass everywhere, and diagnosed idiopathic peripheral neuropathy.

"Idiopathic" is defined as denoting a disease of unknown cause.  See Stedman's Medical Dictionary, 27th ed., 2000, at 873). 

In a letter sent to the VA Secretary in September 2010 and to a U.S. Senator in October 2010, the Veteran contended that he had peripheral neuropathy due to Agent Orange exposure in service.  He asserted that Agent Orange remains in the body for 10 to 20 years after exposure, before any damage is noticeable.  He said that in his case, it was in 1986, exactly 20 years after exposure, that his muscles began to deteriorate.  He also contended that it was well established that it took between 10 and 20 years after Agent Orange exposure for symptoms to occur.  In November 2011, he submitted an internet printout of a speech by a nurse and Agent Orange activist, which is to the effect that Agent Orange is toxic, and that VA compensates veterans for certain health problems caused by Agent Orange including neuropathy.

At his November 2011 Board hearing, the Veteran reiterated many of his assertions.  He testified that he was in excellent health until 1986, when his symptoms started, and his muscles began to wither.  He testified that he had severe disability.

In a March 2012 statement, the Veteran said that he had never heard of peripheral neuropathy until 2005, when his VA doctor diagnosed it.  He said he had not submitted any treatment records because there was no established treatment for peripheral neuropathy.  He also said he had never taken prescription medication.  He enclosed letters from Dr. M. (his family doctor), his herbalist/acupuncturist, and his physical therapist.

By a letter dated in February 2012, K.D.P., L.M.T., a massage therapist, stated that he treated the Veteran from 1993 to 2001 for peripheral neuropathy and a wasting condition of the extremities.

By a letter dated in March 2012, Dr. M. stated that the Veteran had been his patient since June 2009, and he had treated him for progressive peripheral neuropathy with laser therapy, and nutritional, herbal and homeopathic therapies.  He stated, "Having examined [the Veteran], assessed his medical and family history, and knowing the healthful lifestyle he has lived for many years, it is my professional opinion that there is little doubt the severe muscular deterioration of his extremities is due to his exposure to Agent Orange while serving our country in Vietnam."

By a letter dated in March 2012, H.P., an acupuncturist, stated that the Veteran had been his patient since 1997 for treatment of severe and progressive peripheral neuropathy and dramatic muscle wasting of his arms.  He stated, "I don't know what neurotoxins he was exposed to during his tour of Vietnam while serving our country, but their effects have been devastating."

A VA peripheral nerves compensation and pension examination was conducted in April 2012.  The examiner diagnosed idiopathic peripheral neuropathy, and said that this was first diagnosed in 1986.  After an examination, he opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness.  The rationale was that there was no diagnosis of acute or subacute peripheral neuropathy within one year after exposure which resolved within two years, citing 38 C.F.R. § 3.309(e).  He indicated that the first medical documentation of peripheral neuropathy was not until over 30 years after exposure, and the October 1966 separation examination was silent for peripheral neuropathy.  He stated that he had reviewed the claims file, and the several medical opinions of causation by Agent Orange are in conflict with the VA guidelines regarding presumptive service connection.

In a January 2013 addendum medical opinion, the VA examiner stated that he had reviewed the Veteran's private medical records, STRs, and VA medical records.  He opined that the current idiopathic peripheral neuropathy was not due to service or Agent Orange.  He again noted that the first medical documentation of peripheral neuropathy was not until over 30 years after exposure, and the October 1966 separation examination was silent for peripheral neuropathy.  He stated that chronic idiopathic peripheral neuropathy is not presumed by VA to be caused by Agent Orange, and in the Veteran's case, the etiology of his peripheral neuropathy is unknown.  He added that "idiopathic" means self-originated, citing Dorland's medical dictionary.

In deciding this appeal, the Board has considered all lay and medical evidence as it pertains to these claims.  38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence").  In rendering a decision in this 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 or bases 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.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469   (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

The absence of any intervening complaints or findings related to these disabilities for so long after service is a factor weighing against continuity of symptomatology.  38 C.F.R. § 3.303(b) (2012).  See also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran had failed to account for lengthy time period between service and initial symptoms of disability).  Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

After reviewing all of the evidence of record, the Board finds that the evidence does not reflect, and the Veteran does not contend, that he had continuous peripheral neuropathy symptoms of the upper and lower extremities from service until the present.  The evidence does not reflect that peripheral neuropathy was manifested in service or within the first post-service year, and the Veteran does not contend that it did.  He has consistently stated that his neuropathy symptoms of the upper and lower extremities began in 1986, approximately 20 years after his January 1967 separation from service.  Moreover, he has never reported continuous symptoms of these conditions ever since service, and since they were not noted or observed during his service, the provisions of 38 C.F.R. § 3.303(b) regarding continuity of symptomatology since service do not apply in any event.  

There is no evidence of complaints, treatment or diagnosis of this condition for many years after his separation from service in 1967.  Although the Veteran has stated that he was treated or evaluated for his symptoms in 1986 and afterward by many prominent private physicians all over the country, he has never submitted the medical records of such evaluation or treatment, despite VA's repeated requests, and, moreover, says he does not recall the names of these treatment providers.  His massage therapist has stated that he treated the Veteran for these symptoms from 1993 to 2001, and his VA medical records show that he was diagnosed with peripheral neuropathy in January 2005.  And, again, the Veteran reported that his symptoms began in 1986, and he has never asserted that peripheral neuropathy began in service or soon afterwards. 

After reviewing all the relevant lay and medical evidence, the Board finds that the weight of this evidence (the most probative of it) indicates he has not experienced continuous symptoms of peripheral neuropathy of the upper and lower extremities since service, and has not shown the required continuity of symptomatology under 38 C.F.R. § 3.303(b) to establish the required nexus between these claimed conditions and his military service by way of this alternative means (again, even assuming this option was available).

The Veteran is competent to report the symptoms he has experienced in his upper and lower extremities.  However, the Board is not bound to accept his lay testimony concerning this as also credible, and it does not necessarily follow that there is a relationship or correlation between his current peripheral neuropathy  and any incident of his service, to include herbicide exposure.  As mentioned, the credibility of his lay testimony concerning this determinative issue of causation, not just the competency of his testimony, determines its ultimate probative value and must be judged in comparison to the other relevant evidence in the file - including the medical evidence, which includes the VA compensation examiner's opinion refuting the notion that any current peripheral neuropathy is traceable to service.  It is entirely within the Board's province to give more probative weight to certain pieces of evidence than others, so long as the Board provides adequate reasons and bases.  See Schoolman v. West, 12 Vet. App. 307, 310-311 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995).

Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of the Veteran's peripheral neuropathy falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons are not competent to diagnose cancer).  The Board finds that the Veteran is not competent to provide a medical opinion as to the etiology of his peripheral neuropathy of the bilateral upper and lower extremities. 

Evidence weighing in favor of the claim includes two medical opinions by the Veteran's private physician, Dr. M., who opined that the Veteran's delayed-onset peripheral neuropathy was related to in-service Agent Orange exposure.  The Board finds that these medical opinions, although competent, are less probative than the NAS Update 2010 conclusion and prior NAS reports finding that the scientific data does not suggest that exposure to herbicides leads to the development of delayed-onset chronic peripheral neuropathy.  

In October 2010, a VA doctor indicated a causal link between the Veteran's peripheral neuropathy and his conceded Agent Orange exposure, however, the Board finds that the probative value of this opinion is decreased because no rationale was given and it was not accompanied by any clinical findings in support.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (indicating that most of the probative value of a medical opinion is derived from the discussion of its underlying medical rationale, not from mere review of the claims file).  Moreover, the Board finds it significant that in his treatment notes, this VA physician diagnosed idiopathic peripheral neuropathy in the same month that he provided this causal link in a letter.  This contradiction also weighs against the probative value of this medical nexus opinion.

Evidence weighing against the claim includes the fact that the STRs are negative for peripheral neuropathy, NAS Update 2010, and the April 2012 and January 2013 VA medical opinions.  The April 2012 VA examiner, in particular, had the benefit of reviewing the Veteran's claims file in April 2012 and in January 2013 prior to his addendum opinion, and, thus, not only considered what is said to have occurred during service but also during the many years since.  The examiner found that it is not likely that the current idiopathic peripheral neuropathy is related to service.  The opinion is well reasoned, detailed, and consistent with the other evidence of record.  Prejean v. West, 13 Vet. App. 444 (2000).  But, even more importantly, this commenting VA examiner sufficiently discussed the underlying medical rationale of the opinion, which, rather than mere review of the claims file, is more so where the probative value of the opinion is derived.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Green v. Derwinski, 1 Vet. App. 121 (1991).

For these reasons and bases, the Board finds that the weight of the lay and medical evidence is against these claims.  

Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for peripheral neuropathy of both upper and lower extremities.  There is no reasonable doubt to resolve in his favor, and these claims must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 




ORDER

Service connection for peripheral neuropathy of both upper extremities is denied.

Service connection for peripheral neuropathy of both lower extremities is denied.



____________________________________________
K. PARAKKAL 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs