Citation Nr: 1316284	
Decision Date: 05/17/13    Archive Date: 05/29/13

DOCKET NO.  12-35 102	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to service connection for a bilateral foot disability claimed as peripheral neuropathy of the feet.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. Barstow, Counsel

INTRODUCTION

The Veteran had active military service from September 1968 to January 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2011 and December 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.

In the one-year period following the August 2011 rating decision, additional evidence consisting of VA treatment records was received.  The Board observes that in Bond v. Shinseki, 659 F.3d 1362 (2011), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions during relevant time periods to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim.  Bond v. Shinseki, 659 F.3d 1362 (2011).  Submission of additional evidence does not extend the period for initiation of an appeal by submission of a notice of disagreement.  38 C.F.R. § 20.304.  However, under 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).  

Here, within the appeal period of the August 2011 rating decision, new and material evidence consisting of additional treatment records was received.  As such, the additional evidence is considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  Additionally, the February 2012 notice of disagreement was timely as to the August 2011 rating decision.  Consequently, the Board considers the Veteran's initial claim adjudicated in both August 2011 and December 2011 to be on appeal.  

In March 2013, the Veteran testified at a hearing conducted before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.

FINDING OF FACT

The Veteran has peripheral neuropathy of the feet that is as likely as not related to his active duty.


CONCLUSION OF LAW

Resolving reasonable doubt in favor of the Veteran, he has peripheral neuropathy of the feet that was incurred in his military service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the VCAA, VA has a 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 and 3.326(a)(2012).  In this case, the Board is granting in full the issue of service connection for a bilateral foot disability claimed as peripheral neuropathy of the feet.  Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources.

II.  Analysis

The Veteran contends that he has peripheral neuropathy of the feet due to in-service herbicide exposure.  See, e.g., February 2012 notice of disagreement.

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. § 1110.  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 injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  

Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Certain chronic diseases (e.g., organic diseases of the nervous system) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service.  38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012).  

Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  

Certain 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).  The 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 or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).

In general, for service connection to be granted for most of the presumed diseases, they must be manifested to a degree of 10 percent or more at any time after service.  Chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy, however, must be manifest to a degree of 10 percent within one year after the last date on which the veteran performed active military, naval, or air service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975.  See 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. § 3.307(a)(6)(ii); Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).

The diseases for which service connection may be presumed to be due to an association with herbicide agents include AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease [including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina], all chronic B-cell leukemias [including, but not limited to, hairy cell leukemia and chronic lymphocytic leukemia], multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e).  Further, Note 2 under 38 C.F.R. § 3.309(e) states that, for the purposes of that 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." 

Even where the criteria for service connection under the provisions of 38 C.F.R. § 3.309(e) are not met, a veteran is not precluded from establishing entitlement to service connection by proof of direct causation.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

In the current appeal, the Veteran's service treatment records (STRs) verify that he was stationed in the Republic of Vietnam during service.  Furthermore, the Veteran has been awarded service connection for posttraumatic stress disorder (PTSD) due to stressors incurred while stationed in the Republic of Vietnam.  Therefore, his in-service exposure to herbicides is conceded.  

A review of the Veteran's STRs shows no treatment for, or diagnosis of, peripheral neuropathy.  However, they do show several foot complaints.  The Veteran complained of right foot pain in October 1968.  In November 1968, he was treated for bilateral dermatophytosis and irritation of his right heel.  He again complained of right foot pain in December 1968.  The Veteran had an ingrown toenail on his left foot in September 1969.  His January 1970 separation examination revealed clinically normal lower extremities, feet and neurologic system.  

According to post-service medical records, the earliest indication of peripheral neuropathy is in September 2011 when the Veteran was diagnosed with peripheral sensory neuropathy in both feet.  Prior to September 2011, a July 2011 VA examination revealed a diagnosis of degenerative arthritis; a negative nexus opinion was provided.  A treatment record dated in October 2011 shows that the Veteran had painful sensory neuropathy.  It was noted that there were no obvious metabolic abnormalities such as diabetes mellitus.  Agent Orange was opined to be a very likely causative factor given the longstanding nature of his symptoms.  Diagnostic testing in December 2011 confirmed sensorimotor polyneuropathy in the lower extremities.  The Veteran's pertinent treatment records after October 2011 continue to include the same positive nexus opinion.

A December 2012 lay statement from the Veteran's sister indicates that he has had problems with his feet since service.  In his December 2012 substantive appeal, the Veteran reported that his symptoms started two months after discharge from service.  At his March 2013 hearing, the Veteran testified that his symptoms started not long after service.  March 2013 Hearing Transcript (T.) at 3.  The Veteran's overall contentions during this appeal, to include his testimony, indicate that he has had foot symptomatology since service.  

Based on a review of the evidence, the Board concludes that service connection for peripheral neuropathy of the feet is warranted.  As discussed above, the Veteran's in-service exposure to herbicides has been conceded.  Post-service evidence reflects a current diagnosis of peripheral neuropathy of the feet.  The evidence also supports a finding that the Veteran's peripheral neuropathy of the feet is due to his in-service herbicide exposure on a direct basis.

Initially, the Board finds that the criteria for service connection on a presumptive basis have not been met, to include peripheral neuropathy as an organic disease of the nervous system as well as due to herbicide exposure.  For organic diseases of the nervous system, the disability must have been manifested to a degree of 10 percent or more within one year of discharge.  See 38 C.F.R. §§ 3.307(a)(3); 3.309(a).  Although the Veteran has reported having symptoms within one year of discharge, there is no evidence to confirm that it was manifested to a degree of 10 percent or more.  Therefore, service connection on a presumptive basis as an organic disease of the nervous system is not warranted.

For service connection to be granted on a presumptive basis due to herbicide exposure, acute and subacute peripheral neuropathy, must be manifest to a degree of 10 percent within one year after the last date on which the veteran performed active military, naval, or air service in the Republic of Vietnam.  Although the Veteran reported having symptoms two months after discharge from service, the pertinent evidence of record fails to show that he had peripheral neuropathy manifest to a degree of 10 percent within one year from his service in the Republic of Vietnam.  Furthermore, Note 2 under 38 C.F.R. § 3.309(e) states that "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."  In this case, the Veteran has not been shown to have acute or subacute peripheral neuropathy as defined by38 C.F.R. § 3.309(e).  

In this regard, the Board acknowledges that VA is proposing to amend §§ 3.307(a)(6)(ii) and 3.309(e) by replacing the term "acute and subacute peripheral neuropathy" with the term "early-onset peripheral neuropathy" and removing Note 2 to § 3.309(e), which currently requires, in order for the presumption to apply, that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset.  77 Fed. Reg. 47,795, 47,796 (August 10, 2012).  Under these proposed amendments, peripheral neuropathy would still need to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it would no longer need to be transient.  Id.

Regardless of the proposed amendment changing the transient requirement, as discussed above, the evidence still fails to show that the Veteran's peripheral neuropathy was manifested to a degree of 10 percent or more within one year after the date of last exposure to herbicides.  Therefore, service connection for peripheral neuropathy as presumptively due to herbicides is not warranted.  

However, even where the criteria for service connection under the provisions of 38 C.F.R. § 3.309(e) are not met, a veteran is not precluded from establishing entitlement to service connection by proof of direct causation.  See Combee at 1042.  Here, the Veteran's pertinent VA treatment records show that herbicides were a very likely causative factor given the Veteran's longstanding nature of his symptoms.  The Veteran is competent to report his longstanding symptomatology.  Layno v. Brown, 6 Vet. App. 465 (1994).  The Board also finds that the Veteran is credible.  Also, the Board finds the Veteran's sister's statement indicating that he complained of symptoms after discharge from service to be competent and credible.  The medical opinion's rationale that the Veteran had longstanding symptoms is supported by the evidence of record.  Additionally, the Veteran has not been shown to have any obvious metabolic abnormalities such as diabetes mellitus that could have caused his peripheral neuropathy of the feet.  No medical professional has provided any other opinion regarding the etiology of the Veteran's peripheral neuropathy of the feet.  

Accordingly, in considering the Veteran's competent and credible lay statements, the positive nexus opinion, as well as the pertinent medical evidence of record, and in affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that the Veteran has peripheral neuropathy of the feet related to his military service.  The evidence is in favor of the grant of service connection for peripheral neuropathy of the feet.  Service connection for peripheral neuropathy of the feet is, therefore, granted.  See 38 U.S.C.A §5107 (West 2002 & Supp. 2012).


ORDER

Entitlement to service connection for peripheral neuropathy of the feet is granted.  



____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs