Citation Nr: 1319577 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-45 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for a bilateral leg disorder, currently diagnosed as bilateral peripheral neuropathy, to include as due to exposure to herbicides. 2. Entitlement to service connection for glaucoma, to include as secondary to cataracts, diabetes mellitus, type 2, and/or as due to exposure to herbicides. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from June 1958 to July 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The Veteran requested a hearing before the Board but changed his request to a hearing before a Regional Office hearing officer. See November 2009 statement. The requested hearing was conducted in December 2009. A transcript is associated with the claims file. The issue of entitlement to service connection for glaucoma is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving all doubt in favor of the Veteran, the Veteran's bilateral leg disorder, currently diagnosed as bilateral peripheral neuropathy, is causally or etiologically due to service. CONCLUSION OF LAW Service connection for a bilateral leg disorder, currently diagnosed as bilateral peripheral neuropathy, is established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (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 benefit sought on appeal. 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. Entitlement to Service Connection for a Bilateral Leg Disorder, Currently Diagnosed as Bilateral Peripheral Neuropathy, to Include as Due to Exposure to Herbicides The Veteran seeks entitlement to service connection for a bilateral leg disorder. He asserts his leg disorder is due to exposure to herbicides during service. Exposure to herbicides has been conceded. See October 2009 rating decision. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic diseases" in 38 C.F.R. § 3.309(a). Because "organic diseases of the nervous system" is specifically listed as a chronic disease under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology is for application. When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Current VA regulations provide that the following diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e). Acute and subacute peripheral neuropathy shall have 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). Note 2 to § 3.307(e) provides that, for purposes of this section, the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. First, the Board will discuss whether the Veteran is entitled to presumptive service connection based on his exposure to herbicides during service. As noted previously, exposure to herbicides has been conceded. Additionally, the Veteran currently has a diagnosis of bilateral peripheral neuropathy. Importantly, however, the Veteran does not meet the requirements for presumptive service connection for peripheral neuropathy based on herbicide exposure. Based on the regulation, 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. The Veteran was exposed to herbicides during service in 1969, and he currently still experiences peripheral neuropathy, more than 40 years later. As such, the Veteran's peripheral neuropathy did not resolve within two years of the date of onset, and therefore, does not meet the definition of peripheral neuropathy required for the grant of service connection on a presumptive basis as due to exposure to herbicides. However, in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The Veteran's service records were reviewed. The enlistment examination from June 1958 did not indicate any neurological abnormalities. There were no complaints, treatment or diagnoses of neurological symptoms in the legs during service. The separation examination from November 1976 did not note any neurological abnormalities. Post-service records were reviewed. In March 2004, the Veteran sought treatment for progressive left leg numbness, weakness, and apparent thoracic myelopathy. The physician stated it was uncertain whether the Veteran's symptoms were related to Agent Orange exposure in Vietnam. A statement from the Veteran's private physician, Dr. R., in March 2004, indicated that the Veteran was experiencing lower extremity numbness and weakness. The physician stated that these symptoms were unlikely to improve and appeared to be a permanent disorder. Additionally, the physician stated that pyriformius syndrome could not be excluded. In December 2006, the Veteran's VA treating physician submitted a letter. The physician stated the Veteran's medical records were reviewed and the Veteran had expressed problems with dysesthesias of the legs since 1996. The physician stated that in November 1996, the Veteran sought treatment for numbness in the left hip, which went into the left leg. Consultation with a neurologist was completed and the Veteran also underwent an electromyogram (EMG) and magnetic resonance imaging (MRI). It was noted that the Veteran continued to have progressive problems, including dysesthesias of the legs. The physician stated that because clinical findings that vascular, orthopedic, EMG and MRI scans were essentially normal, it is at least as likely as not that the Veteran sustained some nerve damage related to Agent Orange exposure while stationed in Vietnam. The Veteran was afforded a VA examination in September 2009. It was noted that he was diagnosed with diabetes mellitus, type 2, and had been having problems with peripheral neuropathy for the prior five to six years. The Veteran described symptoms of a burning sensation from his hip to foot on the lateral aspect of the right leg through the bottom of his foot and a numb left leg from hip to foot with no strength and a dropped foot when he walked up stairs. He reported that this initially presented as a tingling but it gradually progressed to numbness. Neurological examination revealed diminished light touch in the entire left lower extremity, with increased diminishing of sensation going down the left leg. He had light touch sensation on the dorsum of both feet but diminished sensation on the left plantar surface. Vibratory sense was absent at the right and left medial malleoli and positive at the right great metatarsophalangeal joint and diminished on the left. Sensation with monofilament was absent on the right and left lower extremities from above the knee to the foot. There was diminished muscle strength on the left lower leg compared to the right, along with some muscle atrophy of the left leg. The Veteran was diagnosed with bilateral peripheral neuropathy and extensive peripheral vascular disease. The examiner opined that the Veteran's peripheral vascular disease and peripheral neuropathy were not caused by or aggravated by his diabetes mellitus, type 2, as these problems preceded his diagnosis of diabetes and there had been no change since his diagnosis of diabetes. The Veteran testified in December 2009 that he first started noticing tingling and numbness in his left leg starting in 1992. See December 2009 Hearing Transcript, page 2. He asserted that he began having difficulty walking and lost strength in the left leg, which caused him to fall frequently. Id. He testified that he is currently experiencing similar symptoms in the right leg as well. Id. The Board notes that the Veteran is competent to comment on any symptoms, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A VA medical opinion was obtained in January 2010. The examiner reviewed the Veteran's medical records and diagnosed him with peripheral neuropathy of both lower extremities. The examiner opined that the Veteran's peripheral neuropathy is less than likely caused by or aggravated by his diabetes mellitus, type 2. The examiner noted that the Veteran was first evaluated for lower extremity symptoms 13 years before his diabetes was diagnosed. The examiner stated that the diagnosis of diabetes was so many years after the onset of leg symptoms that it could not be considered as contributing to them. Service connection for a bilateral leg disorder, currently diagnosed as bilateral peripheral neuropathy, is warranted because the evidence is at least in relative equipoise. Based on the medical evidence, the Veteran's treating VA physician has linked his peripheral neuropathy to his time in service. Additionally, in March 2004, it was noted that the Veteran was diagnosed with degenerative disc disease, in which pyriformius syndrome could not be excluded with multilevel foraminal narrowing. Importantly, the Board notes that the Veteran is service connected for osteoarthritis of the lumbar spine. As such, the medical evidence, particularly the report from March 2004, demonstrates a possible relationship between his neurological symptoms and his service-connected lumbar disability. While there are negative VA medical opinions regarding the relationship between his diabetes mellitus, type 2, and his peripheral neuropathy, there is no opinion to the contrary regarding the relationship between his neuropathy and his time in service. In light of the discussion above, while the evidence is not unequivocal and it is not certain that the Veteran's neurological disorder is due to his exposure to herbicides in service or is due to his service-connected lumbar disability, the evidence has nonetheless placed the record in relative equipoise. Upon resolution of every reasonable doubt in the Veteran's favor, the Board determines that service connection is warranted for a bilateral leg disorder, currently diagnosed as bilateral peripheral neuropathy. ORDER Entitlement to service connection for a bilateral leg disorder, currently diagnosed as bilateral peripheral neuropathy, to include as due to exposure to herbicides, is granted. REMAND The Veteran seeks entitlement to service connection for glaucoma, to include as secondary to cataracts, diabetes mellitus, type 2, and/or to include as due exposure to herbicides. First, the claims file indicates that the Veteran is receiving Social Security disability benefits. See September 2009 VA examination. 38 U.S.C. § 5103A(b)(3) requires that VA continue any attempts to get federal records "until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." It has been established that the Veteran is receiving disability benefits with the Social Security Administration. These records must be obtained as they may include clinical evidence of the Veteran's glaucoma. Additionally, the Veteran was afforded a VA examination for his eyes in September 2009. The examiner stated that although complications of diabetes can produce secondary glaucoma, an association between diabetes and open-angle glaucoma is still unclear. The Board finds this opinion to be inadequate. The examiner must offer an opinion regarding whether it is at least as likely as not that the Veteran's glaucoma is proximately due to or aggravated by his diabetes mellitus. Furthermore, the Veteran was granted service connection for cataracts in an April 2010 rating decision. As such, a remand is necessary to obtain a medical opinion regarding whether the Veteran's glaucoma is proximately due to or aggravated by his cataracts. Any updated treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file all updated treatment records. 2. Obtain the Veteran's Social Security disability records, as well as the medical records relied upon concerning that claim. If records cannot be obtained after an exhaustive search, VA's efforts and any resolution determined must be fully documented for the record. 3. Obtain an addendum opinion to the September 2009 VA eye examination. If deemed necessary by the examiner, afford the Veteran a VA examination for his glaucoma. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. After the claims file is reviewed, the examiner should offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's current glaucoma is causally or etiologically due to service, to include exposure to herbicides, had an onset during service, or is proximately due to or aggravated (permanent increase in severity beyond natural progress) by his service-connected diabetes mellitus, type 2, or cataracts. In rendering these opinions, the examiner should consider the Veteran's statements regarding the onset of his glaucoma. The examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 4. The RO should then readjudicate the Veteran's claim. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if appropriate. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs