Citation Nr: 1319377 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 12-27 377A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1952 to February 1974, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran's substantive appeal was received outside the 60-day period following the July 2012 mailing of the Statement of the Case (SOC). However, the Veteran submitted an appropriate explanation that the SOC was mailed to the wrong address, delaying his receipt and response. Moreover, the RO certified the issue to the Board. Therefore, the Board accepts jurisdiction of the appeal. See Gonzalez-Morales v. Principi, 16 Vet. App. 556 (2003) (per curium) (failure to file a timely substantive appeal does not automatically foreclose an appeal, render a claim final, or deprive the Board of jurisdiction). The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they do not contain any additional evidence relevant to the issue on appeal. 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). FINDING OF FACT The Veteran's peripheral neuropathy of the bilateral upper and lower extremities manifested many years after the Veteran's discharge from service, and is not otherwise shown to be etiologically related to service. CONCLUSION OF LAW The requirements for establishing service connection for peripheral neuropathy of the bilateral upper and lower extremities have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this case, a letter issued in November 2009, sent prior to the decision on appeal, provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The same letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the service treatment records (STRs), personnel records, VA treatment records, private treatment records, and a VA examination report. The Veteran was afforded a VA examination in February 2010. This examination and opinion considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was provided with a meaningful opportunity to participate in the claims process and has done so by providing evidence and argument and presenting for VA examination. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran seeks service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to herbicide exposure. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and an organic diseases of the nervous system manifests to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, service connection for certain diseases may be granted based on presumed exposure to certain herbicide agents, even though there is no record of such disease during service. Presumed exposure to an herbicide exists for a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, that included service in the Republic of Vietnam or other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. Further, certain chronic diseases associated with exposure to herbicide agents and enumerated at 38 C.F.R. § 3.309(e), including acute and subacute peripheral neuropathy, must have manifested to a degree of 10 percent or more within one year after the last date on which the Veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.307(a)(6)(ii) (2012). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for chronic peripheral nervous system disorders (other than early-onset peripheral neuropathy). Veterans and Agent Orange: Update 2010 (Update 2010), 77 Fed. Reg. 47,924 (Aug. 10, 2012). When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all the evidence in the record. 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 appellant 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 claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Board notes that the Veteran's STRs are negative for complaints, treatment, or diagnoses of any symptoms referable to peripheral neuropathy of the bilateral upper and lower extremities. VA treatment records from August 2009 to September 2009 are silent with respect to any symptoms of peripheral neuropathy of the bilateral upper and lower extremities. The earliest private treatment record, dated October 2007, lists idiopathic peripheral neuropathy in the Active Problem list and the Veteran's medical history noted that he had peripheral neuropathy in his left big toe. A January 2008 treatment record states that the Veteran was going to physical therapy for his peripheral neuropathy and that this had given him relief in the past. The private treatment records continue to refer to an ongoing diagnosis of peripheral neuropathy without specifying the locations thereof. The Veteran reported to the February 2010 VA examiner that he had numbness, tingling, and burning pain in both feet for about 10 years and that it was worsening. He had difficulty with fine motor work. He was taking multiple medications for peripheral neuropathy and pain in the legs and hands. Following physical examination, the VA examiner diagnosed bilateral neuropathy, moderately severe in both hands and severe in both legs. The neuropathy was in the distribution of gloves and stockings. The VA examiner opined that it was unlikely that this peripheral neuropathy developed from exposure to Agent Orange in service. He explained that while the etiology is unknown, the Veteran retired from the military in 1974, and did not experience symptoms of peripheral neuropathy until more than 25 years later. The examiner noted, "The symptoms of peripheral neuropathy per literature due to exposure to Agent Orange is an acute form and lasts for a year or two or three." Therefore, the Veteran's development of peripheral neuropathy in both lower extremities and upper extremities after 25 years does not correspond with the type of acute and subacute peripheral neuropathy caused by Agent Orange. Because of the long gap in time between exposure to Agent Orange and development in neuropathy, the examiner stated that it would be speculative on his part to opine that the Veteran's peripheral neuropathy was secondary to herbicide exposure. Initially, the Board notes that the Veteran's service in Vietnam has been confirmed, and he is therefore presumed to have been exposed to Agent Orange. However, his peripheral neuropathy was not shown to be manifested until many years following his discharge from service. Accordingly, as this condition was not shown within one year following his service in Vietnam, and is not shown to be acute or subacute peripheral neuropathy, service connection on a presumptive basis as due to Agent Orange exposure is not warranted. 38 C.F.R. §§ 3.307(a)(6)(ii) (2012), 3.309(e). The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran does not contend and the evidence does not suggest that his claimed disability arose during service. Service treatment records are negative for any complaints, treatment, or diagnoses referable to the Veteran's peripheral neuropathy of the bilateral upper and lower extremities. The earliest medical evidence of record of the disability is the October 2007 private treatment record, and the Veteran reported that his symptoms began about 10 years before the February 2010 VA examination. There is no medical evidence suggesting a nexus between the current disability and service. The Veteran contends that his peripheral neuropathy of the bilateral upper and lower extremities is related to his herbicide exposure during military service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), in this case the question of whether peripheral neuropathy is due to herbicide exposure 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). The Veteran is not shown to possess the medical knowledge to attribute his peripheral neuropathy of the bilateral upper and lower extremities to any specific instance of his military service, including Agent Orange exposure. While the Veteran is competent to describe his peripheral neuropathy symptoms, he is not competent to opine on such a complex medical question as the etiology of his peripheral neuropathy. As such, the Board accords significantly more weight to the opinion of the VA examiner, who concluded the Veteran's peripheral neuropathy is not related to service, to include Agent Orange exposure therein. In sum, the Veteran does not contend and the evidence does not show his peripheral neuropathy manifested in service or within one year following discharge from service, and there is no medical evidence of record suggesting a connection between service, to include in-service exposure to herbicides, and the Veteran's peripheral neuropathy of the upper and lower extremities. Accordingly, the preponderance of the evidence is against the claim and service connection for peripheral neuropathy of the upper and lower extremities is denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to herbicide exposure, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs