Citation Nr: 1317832
Decision Date: 05/31/13	Archive Date: 06/28/13

DOCKET NO. 08-06 258	)       DATE MAY 31 2013

On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee

THE ISSUE

Entitlement to service connection for peripheral neuropathy of both legs, to include as due to Agent Orange exposure.

REPRESENTATION 

Appellant represented by:   Vietnam Veterans of America

ATTORNEY FOR THE BOARD

David S. Ames, Counsel

INTRODUCTION

The Veteran served on active duty from June 1969 to November 1972.

This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (RO).

In a March 2007 decision, the Board but denied service connection for peripheral neuropathy of both legs. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims. Pursuant to a September 2010 Joint Motion to Vacate and Remand, the Court vacated the Board decision and remanded the issue for readjudication consistent with the Joint Motion. This case was then remanded by the Board in January 2011, December 2011, and August 2012 for additional development.

In the January 2011, December 2011, and August 2011, the Board noted that the issues of entitlement to service connection for a back disorder and a bilateral knee disorder had been raised by the record, but had not been adjudicated by the RO. As a result, these matters were referred to the RO for appropriate action. The evidence of record still shows that these matters have not been adjudicated by the RO, so they are once again referred to the RO for appropriate action.

FINDING OF FACT

The preponderance of the competent and credible evidence of record shows that the Veteran's currently diagnosed peripheral neuropathy of both legs is not related to military service.

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CONCLUSION OF LAW

Peripheral neuropathy of both legs was not incurred in, or aggravated by, active military service and may not be presumed to have been so incurred, to include as due to Agent Orange exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfleld v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in January 2007 and January 2011.

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The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim).

Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless).

The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran's service treatment records do not include a copy of a separation medical examination, which raises the possibility that some of the Veteran's service treatment records are not currently associated with the claims file. However, in accordance with the January 2011 Board remand, attempts were made to obtain any additional service treatment records that existed. Some additional records were obtained at that time, and in April 2011 a formal finding was made that some of the Veteran's service treatment records were unavailable. The absence of these records has subsequently been noted in multiple documents sent to the Veteran. Accordingly, the Board finds that the Veteran has been properly informed that these records were unobtainable. In cases where the Veteran's service treatment records are not obtainable, there is a heightened obligation to explain findings and to carefully consider the benefit of the doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).

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The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations and medical opinions with respect to the claim. In a March 2013 informal hearing presentation, the Veteran's representative requested that the Board remand the Veteran's claim for a fourth time, as the most recent medical opinion, dated in August 2012, was inadequate. Specifically, the Veteran's representative claimed that the opinion was inadequate because it was based on a finding that the Veteran's symptoms began in 2000, and that such a finding was an inaccurate factual premise. The Veteran's representative specifically focused on the Veteran's statements that his peripheral neuropathy had existed in-service and continuously since separation from service. As will be discussed below, the Board finds the Veteran's statements in this regard to be not credible. Accordingly, the Board finds that the rationale provided in the August 2012 VA medical opinion is based on an accurate factual premise and, as a result, the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there

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is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). For certain chronic disorders, including peripheral neuropathy, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Additionally, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. Acute and subacute peripheral neuropathy is deemed associated with herbicide exposure, under VA law, and shall be service-connected if a Veteran was exposed to a herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service. 38 C.F.R. § 3.309. However, acute and subacute peripheral neuropathy must 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).

In this case, the Veteran claims that he developed peripheral neuropathy during active military service, to include as the result of exposure to Agent Orange. The evidence of record shows that the Veteran was awarded the National Defense Service Medal, Vietnam Service Medal with three Bronze Service Stars, the Vietnam Campaign Medal, and the Combat Infantryman's Badge. This evidence confirms that the Veteran served in Vietnam. Under 38 U.S.C.A. § 1116(f), he is therefore presumed to have been exposed to herbicide agents, to include Agent Orange.

The medical evidence of record shows that the Veteran has a current diagnosis of peripheral neuropathy of both legs. While acute and subacute peripheral neuropathy are presumptive disorders under 38 C.F.R. § 3.309(e), for the purposes of 38 C.F.R. § 3.309(e), the term acute and subacute peripheral neuropathy means

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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). The most recent medical evidence of record shows that the Veteran's bilateral peripheral neuropathy of the lower extremities continued to be diagnosed until at least February 2012, over 39 years after separation from military service. It is therefore not acute or subacute peripheral neuropathy for the purposes of 38 C.F.R. § 3.309(e). Accordingly, presumptive service connection for peripheral neuropathy of both legs is not warranted under 38 C.F.R. § 3.309(e).

Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724,2727- 29 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The United States Court of Appeals for Veterans Claims has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167(1999).

The Veteran's service treatment records are negative for any complaints or diagnosis of peripheral neuropathy.

After separation from service, an October 2000 private medical report stated that the Veteran was referred for neurological evaluation. He complained of pain in the bottom of his feet and in his calves. After physical examination, the impression was peripheral polyneuropathy. The medical evidence of record shows that peripheral neuropathy of both legs has been consistently diagnosed since October 2000.

In an August 2001 private medical report, the Veteran stated that his left big toe had gone numb over the previous five to six weeks, and he also noticed tingling in his left second toe.

A May 2002 private medical report stated that the Veteran had a one-year history of numbness in his legs and occasional sharp pain in the lower leg.

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In a July 2003 private medical report, the Veteran stated that he had been exposed to Agent Orange and wondered about the possibility that his neuropathy was related to that exposure. The private physician "told him that I do not have any evidence that this causes a late neuropathy like this but any information that he has on this I would be happy to review."

In a December 2003 private medical report, the Veteran once again questioned the private physician about whether his neuropathy was related to Agent Orange. The private physician "told him I did not have any certainty of that."

In a February 2008 appeal to the Board, the Veteran stated that his peripheral neuropathy had been present at his discharge from service, but it was mild in severity at that time.

In an August 2009 VA outpatient medical report, the Veteran reported that he had experienced recurring swelling of his feet for about 20 years.

In a December 2010 statement, the Veteran's wife stated that she had known him for 30 years and that throughout that time he had always complained of problems with his legs and feet.

In a February 2011 VA peripheral nerves examination report, the Veteran reported that he began experiencing leg pain after he returned from Vietnam. Specifically, he reported that he experienced muscle spasms and pain to the tops of his feet. The Veteran stated that he did not seek treatment for his leg pain until 2000, as the pain was not significant until that time. After physical and diagnostic examination, the diagnoses were peripheral neuropathy of the right and left lower extremities. The examiner stated that an etiological opinion could not be given without resort to mere speculation. The reasoning was that the Veteran had multiple factors other than military service which could contribute to peripheral neuropathy of the lower extremities, including his smoking history, low back pain, and questionable anterior tarsal tunnel syndrome.

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A November 2011 private medical report stated that the Veteran was diagnosed with peripheral neuropathy approximately 10 years before.

In a January 2012 statement, the Veteran reported that he had always had issues with his feet and lower legs since returning from Vietnam, but just put up with it until it became severe.

A February 2012 VA medical opinion stated that the Veteran's claims file had been reviewed. The examiner opined that the Veteran's peripheral neuropathy of the lower extremities was less likely than not incurred in or caused by service. The rationale was that the Veteran's service treatment records and a separation VA disability claim were silent for neurological symptoms or conditions, and subsequent medical and lay evidence indicated that the Veteran's symptoms began in approximately 2000. The examiner also opined that it was less likely than not that the Veteran's peripheral neuropathy of the lower extremities was chronic and continuous since active service. The rationale was indicated to be the same as for the first opinion. The examiner then opined that it was less likely than not that the Veteran's peripheral neuropathy of the lower extremities was related to exposure to herbicides. The rationale was once again indicated to be the same as for the first opinion. The examiner then included a discussion of medical articles submitted by the Veteran, and stated that there was no known current definitive link between the development of latent peripheral neuropathy and Agent Orange. Finally, the examiner opined that the Veteran's peripheral neuropathy was idiopathic.

An August 2012 VA medical opinion stated that the Veteran's claims file and lay statements had been reviewed. The examiner opined that the Veteran's lower extremity peripheral neuropathy was less likely than not incurred in or caused by service. The rationale was that the Veteran's service treatment records and a separation VA disability claim were silent for neurological symptoms or conditions, and subsequent medical and lay evidence indicated that the Veteran's symptoms began in approximately 2000. The examiner noted that the Veteran's wife reported having knowledge of his peripheral neuropathy symptoms as long as she had known him, but noted that this only indicated knowledge of the condition since 1980, which was eight years after separation from service. The examiner also noted that

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the Veteran's recent reports of symptomatology since Vietnam contradicted his earlier reports about the onset of his condition. The examiner also opined that it was less likely than not that the Veteran's lower extremity peripheral neuropathy was chronic and continuous since active service. The rationale was indicated to be the same as for the first opinion. Finally, the examiner opined that it was less likely than not that the Veteran's peripheral neuropathy of the lower extremities was related to exposure to herbicides. The rationale was indicated to be the same as for the first opinion.

The Board finds that the preponderance of the competent and credible evidence of record shows that the Veteran's currently diagnosed peripheral neuropathy of both legs is not related to military service. The Veteran's service treatment records are negative for any complaints or diagnosis of peripheral neuropathy. While the medical evidence of record shows that the Veteran has a current diagnosis of peripheral neuropathy of both legs, there is no medical evidence of record that shows that peripheral neuropathy was diagnosed prior to October 2000, approximately 28 years after separation from military service. See 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 which resulted in any chronic or persistent disability); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition).

In addition, there is no medical evidence of record which relates the Veteran's currently diagnosed peripheral neuropathy of both legs to military service in any way. The February 2011 VA peripheral nerves examination report stated that an etiological opinion could not be given without resort to mere speculation, while both the February 2012 and August 2012 VA medical opinions stated that it was less likely than not that the Veteran's disability was incurred in or caused by service, chronic and continuous since active service, or related to exposure to herbicides. The rationale given by the August 2012 VA medical opinion was

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adequate, as it was based on an accurate review of the evidence of record, including both medical and lay evidence. As discussed below, the Board concurs with the VA medical opinion's reasoning regarding the Veteran's lay statements. In addition, the Veteran's own private physician stated in July 2003 that "I do not have any evidence that [Agent Orange] causes a late neuropathy like this."

The Veteran claims that he has experienced peripheral neuropathy of both legs continuous since he returned from Vietnam. Under certain circumstance, lay evidence can be competent and sufficient to establish the etiology or diagnosis of a condition. Davidson v. Shinseki, 581 F.3d 1313 (2009). However, such etiological evidence is only competent to the extent that it relies on observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In this case, the Veteran is capable of observing lower extremity neurological symptoms. In addition, the Veteran's lay statements are competent to demonstrate continuity of symptomatology of his peripheral neuropathy. 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the Board finds the Veteran's statements in this regard to be not credible as they are contradicted by other evidence of record.

The Board notes that the Veteran's separation medical examination is not available. However, the Veteran's DD Form 214 shows that he served in Vietnam from November 24, 1969, though November 6, 1970. The Veteran has repeatedly claimed that his symptoms began after his service in Vietnam. Thus, by the Veteran's own statements he claims to have experienced these symptoms during his last two years of active service. There are multiple service treatment records from this period of time and none of them include any complaints of neurological symptoms in the Veteran's lower extremities. In addition, the Veteran's service treatment records also include an August 1970 medical report, dated only a few months before the end of his period of service in Vietnam. In that report, the Veteran specifically sought treatment for left knee problems, but did not mention experiencing any neurological abnormalities of the left foot of calf. The Board finds that the Veteran's failure to report such symptoms while he was actively seeking treatment for other left leg symptoms constitutes evidence that the Veteran

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was not experiencing any neurological abnormalities of the left foot or calf at that time.

The Veteran claims he did not seek treatment during service or for many years after separation from service as the symptoms were mild, and that he only sought treatment in 2000 because the symptoms became severe. However, the Board finds that these statements are contradicted by other evidence of record. First, the Veteran filed a claim for VA benefits on November 29, 1972, the date of his separation from service. The fact that the Veteran filed a claim on the exact date of his separation constitutes evidence that he was actively contemplating his present disabilities and seeking compensation for those that had arisen during his period of service. At that time, the Veteran sought compensation for lower back pressure and a fractured back bone, and made no mention of any lower extremity disorder. The Board finds that the Veteran's failure to seek compensation for a lower extremity disorder on his November 1972 claim constitutes evidence that he was not experiencing lower extremity peripheral neuropathy at that time. See Shaw v. Principi, 3 Vet. App. 365 (1992) (stating that a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim).

Furthermore, there is additional evidence of record which is also inconsistent with the Veteran's report of experiencing lower extremity symptoms continuously since his return from Vietnam. First, on the Veteran's December 2006 application for compensation, he specifically reported that his disability began in October 2000. Such a statement is inconsistent with the Veteran's claim that the disability began in 1969 or 1970, and only increased in severity in 2000. The Board also notes that the Veteran did not report experiencing lower extremity symptoms continuously since Vietnam until the February 2008 appeal to the Board, over 7 years after his initial diagnosis. This period of time included numerous private medical reports in which the Veteran never stated that his symptoms had been present for over 30 years. While the Veteran asked his private physician whether his neuropathy could be related to exposure to Agent Orange in July 2003 and December 2003, he was simply requesting an etiological opinion and did not state that his symptoms had been present continuously since his exposure to Agent Orange. Furthermore, the May 2002 private medical report stated that the Veteran had a one-year history of

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his symptoms. While this statement is clearly not precisely accurate, as the Veteran's peripheral neuropathy had been diagnosed one-and-a-half years earlier, it is still consistent with symptomatology that began relative recently rather than 33 years earlier. Finally, in the July 2003 private medical report, the Veteran's private physician specifically characterized the Veteran's disability as "a late neuropathy." This constitutes evidence that the private physician believed the Veteran's disability began a lengthy period of time after his exposure to Agent Orange. The Board finds that all of this evidence is more probative than the Veteran's reported history. See Curry v. Brown, 1 Vet. App. 59,68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the Veteran).

The only evidence of record that the Veteran has presented which corroborates his claim of continuity of symptomatology is the December 2010 statement from his wife. However, in that statement the Veteran's wife reported that she had known the Veteran since approximately 1980, and as such she was incapable of observing the Veteran's symptomatology until eight years after his separation from service. As such, her statement is not competent to demonstrate that the Veteran experienced symptoms continuously from his period of service in Vietnam until 1980. Barr, 21 Vet. App. at 307 (2007). In summary, the Board finds that the preponderance of the evidence of record demonstrates that the Veteran did not experience lower extremity peripheral neuropathy symptoms continuously since his return from Vietnam. As such, the Board also finds that the Veteran's reports of continuity of symptomatology since Vietnam are not credible.

The Veteran has also submitted some medical articles from the internet which discussed studies into a relationship between peripheral neuropathy and Agent Orange exposure. These medical reports were generic discussions of general medical conditions without any reference to the Veteran's specific case. Accordingly, these medical reports by themselves are not competent evidence of a nexus between the Veteran's peripheral neuropathy and his military service. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (finding that generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case does not provide competent evidence to establish a nexus between current disability and military service); Sacks v. West, 11 Vet. App.

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314, 316-17 (1998) (holding that a medical article or treatise can provide support for a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships). In addition, the only medical evidence of record which discussed the articles provided negative nexus opinions.

Accordingly, the preponderance of the competent and credible evidence of record demonstrates that that the Veteran's currently diagnosed peripheral neuropathy of both legs is not related to military exposure, to include as due to Agent Orange exposure. As such, service connection for peripheral neuropathy of both legs is not warranted.

In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the competent and credible evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Service connection for peripheral neuropathy of both legs, to include as due to Agent Orange exposure, is denied.

Tresa M. Schlecht 
Acting Veterans Law Judge, Board of Veterans' Appeals

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