Citation Nr: 1322084 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 05-03 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for peripheral neuropathy, to include as secondary to service-connected anxiety disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970. He was stationed in the Republic of Vietnam from August 10, 1968, to August 9, 1969. This appeal comes before the Board of Veterans' Appeal (Board) from a February 2004 rating decision of the Department of Veterans Affairs (VA) in Atlanta, Georgia, Regional Office (RO), which in pertinent part, denied a claim for service connection for peripheral neuropathy and declined to reopen a previously denied claim for service connection for posttraumatic stress disorder (PTSD). In August 2005, the Veteran testified before the undersigned Veterans Law Judge via video conference. The Veteran was provided an opportunity to set forth his contentions at the hearing. The record reflects that at this hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). A copy of the hearing transcript has been associated with the claims folder. In December 2005, the Board reopened a previously denied claim for service connection for posttraumatic stress disorder (PTSD) and remanded the underlying claim for additional development and considered that the claim for service connection for peripheral neuropathy to be inextricably intertwined. In June 2008, the Board issued a decision that denied entitlement to service connection for PTSD and for peripheral neuropathy. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which in a July 2009 Order, granted the parties' Joint Motion, vacating the Board's June 2008 decision and remanding the claims for compliance with the terms of the Joint Motion. The Board recharacterized the claim for service connection for PTSD to an acquired psychiatric disorder, to include PTSD and anxiety disorder, in light of the Court's holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In January 2010 and April 2011, the Board remanded the claim for service connection for acquired psychiatric disorder to the RO (via the Appeals Management Center (AMC)) for additional development and remanded the Veteran's claim for peripheral neuropathy because the claim, per the Court, was inextricably intertwined with the service connection claim for acquired psychiatric disorder. In September 2012, the Board awarded service connection for anxiety disorder and remanded the claim for peripheral neuropathy to ensure compliance with all necessary notification, to obtain outstanding records of pertinent treatment, and to provide the Veteran with a VA neurologic examination. The Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.) Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issues of entitlement to service connection for hypertension, bilateral hearing loss, and tinnitus have been raised by the record, but they have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam, and his exposure to herbicide, to include Agent Orange, is presumed. 2. The Veteran's peripheral neuropathy did not have an onset until three decades after his separation from service, and the evidence does not support the conclusion that peripheral neuropathy is related to service, to include herbicide exposure, or proximately caused by his service-connected anxiety disorder. CONCLUSION OF LAW Peripheral neuropathy was not incurred or aggravated during active duty service, as secondary to PTSD, nor can it be presumed to be related to herbicide exposure during active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations requires VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all five elements of a service connection claim, including: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In this case, the Veteran was advised in September 2003, March 2006, and October 2012 of the evidence and information necessary to substantiate his claims, and the responsibilities of the Veteran and VA in obtaining such evidence. He was further advised of the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. Accordingly, with respect to VCAA notice, there is no prejudice to the Veteran in the Board's proceeding with the issuance of a decision on the merits as to his claim for service connection. Any timing defect was cured by the subsequent readjudication of the Veteran's claim, to include in an April 2013 Supplemental Statement of the Case. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006); Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the available record includes service treatment records, service personnel records, post-service VA medical treatment reports, and the Veteran's own statements. To the extent that any more recent records may remain outstanding, there is no indication that they are necessary for a fair adjudication of the Veteran's claims. The Board finds that the notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to the matters have been requested or obtained. There is no evidence that any additional relevant treatment records exist, and the Veteran has not so alleged. Pursuant to the Board's September 2012 remand directives, the Veteran was afforded a November 2012 VA neurologic examination. The examination report shows that the VA examiner reviewed the claims folders and recorded the Veteran's reported history and the clinical findings in the examination report, and he provided a comprehensive statement in support of his conclusions. The Board finds that the medical opinion is adequate for adjudication purposes, and the adequacy of this medical opinion is discussed in further details below. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The RO/AMC has substantially complied with the Board's August 2011 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Service Connection Service connection may be granted 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(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A disability that is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. When service connection is thus established for a secondary condition, the secondary condition shall be considered part of the original condition. Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. A disability which is aggravated by a service-connected disorder may be service connected, but compensation is only available for the degree to which that condition was made worse by the service-connected condition - only to the degree that the aggravation is shown. 38 C.F.R. § 3.310. In such a situation, VA laws require that the medical evidence must show a baseline level of severity of the nonservice-connected disease or injury, which is established by medical evidence created before the onset of aggravation. Id. In addition, in some circumstances, a disease associated with exposure to certain herbicide agents (e.g., Agent Orange) will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. Peripheral neuropathy is one of the itemized conditions found to have some relation to Agent Orange exposure. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who 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(a)(6)(iii). Diseases associated with such exposure include acute and subacute peripheral neuropathy. 38 C.F.R. § 3.309(e). In order to be entitled to presumptive service connection under 38 C.F.R. § 3.309(e), the acute or 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). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(iii). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Presumptive and Direct Service Connection Based on Herbicide Exposure The Veteran claims his peripheral neuropathy is related to his exposure to Agent Orange during service in the Republic of Vietnam. A review of the Veteran's service records shows that he was stationed in the Republic of Vietnam for one year, and that he was a recipient of the Vietnam Service Medal and Vietnam Campaign Medal. As he served in the Republic of Vietnam during the Vietnam War, the Veteran's exposure to Agent Orange is presumed. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). Here, there is no indication in the Veteran's service treatment records of any complaints, treatment or diagnosis of peripheral neuropathy. See Service Treatment Records dated February 1968 to January 1970. The first evidence of the Veteran's peripheral neuropathy is not shown until three decades after his discharge from service. See VA treatment records starting in March 2003 that show complaints of numbness and tingling in both feet and hands for the past few months, as well as the report of a July 2005 VA Electromyography (EMG) that shows an impression of axonal neuropathy. The Veteran is not entitled to presumptive service connection under 38 C.F.R. § 3.309(e), because his disability had not manifested 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 service. Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board will next turn to whether service connection is warranted on a direct basis. Here, the evidence of record shows that the Veteran has been diagnosed with axonal neuropathy. See July 2005 VA EMG report; see also November 2012 VA examination report. He is presumed to have been exposed to herbicides, including Agent Orange, during his service in Vietnam. The next question on appeal is whether there is medical evidence of a nexus between the in-service exposure to Agent Orange and the Veteran's current disability. With regard to the three decades-long evidentiary gap in this case between active service and the earliest manifestations of neuropathy, the Board finds this gap in time significant, and, as noted above, it weighs against the existence of a link between current neuropathy and his time in service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may consider a prolonged period without medical complaint when deciding a claim). There is nothing in the file indicating a possible link between the Veteran's peripheral neuropathy and service, service connection cannot be established on a direct basis either. Rather, the July 2005 VA EMG report shows an impression of "moderately severe prodromal asenesory axonal neuropathy most likely due to alcohol abuse for 30 years." Also, in the November 2012 VA neurologic examination report, the VA examiner opined that it was less likely than not that the Veteran's axonal neuropathy was incurred in or related to his period of service, to include any inservice injury, such as exposure to Agent Orange. The VA examiner supported his medical conclusion by noting that the first medical evidence of the Veteran's neuropathy comes 35 years after his separation from service. Instead, the VA examiner opined that the Veteran's neuropathy was likely related to his years of polysubstance abuse, including alcohol and heroin. The Board finds it highly pertinent that there is no contradictory medical opinion of record. The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his service-connection claims, and against the reasoned conclusions of the VA examiner; he has not done so. See 38 U.S.C.A. § 5107(a) (it is a claimant's responsibility to support a claim for VA benefits). The Board has considered the Veteran's lay assertion that his neuropathy is etiologically related to his inservice exposure to Agent Orange. 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later 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 Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno v. Brown, 6 Vet. App. at 470. As a lay person, however, he is not competent to offer opinions on medical diagnosis or causation lay observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). In this case, the Board attaches greater probative weight to the clinical findings of skilled, unbiased medical professionals than to the Veteran's statements. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection on a presumptive and direct service connection bases. 38 C.F.R. §§ 3.102, 3.30, 3.307, and 3.309. Secondary Service Connection The Board will now consider whether service connection for peripheral neuropathy is warranted on a secondary basis. In order to do so, the evidence of record must at least be in equipoise on whether the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Here, the July 2005 VA EMG report and the November 2012 VA neurologic examination report show that the Veteran's axonal neuropathy is likely related to his long history of alcoholism and polysubstance abuse. The November 2012 VA examiner concluded that the Veteran's neuropathy was not caused or aggravated by his service-connected mental health disability. The examiner noted that a review of the medical literature does not show that mental health disorder, like PTSD, causes or aggravates peripheral neuropathy. These medical opinions weigh heavily against a secondary relationship specifically between the Veteran's peripheral neuropathy and his service-connected anxiety disorder. Pertinently, there is no contrary medical opinion of record, nor has the Veteran asserted otherwise. The thrust of the Veteran's claim regarding service connection for peripheral neuropathy is that it should be granted on a secondary basis as it is a result of many years of alcohol abuse as self-treatment for service-connected anxiety disorder. The Board initially observes that 38 U.S.C.A. §§ 105(a) and 1131 prohibit compensation where the "disability is a result of the veteran's . . . abuse of alcohol or drugs." The Federal Circuit has held that these sections preclude compensation for (1) a primary alcohol abuse disability incurred during service, and (2) any secondary disability (such as cirrhosis of the liver) resulting from primary alcohol abuse during service. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). However, disability compensation may be paid for an alcohol abuse disability that is due to a service-connected disability. Id. Such compensation is only available where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful misconduct. Id. at 1381. Accordingly, service connection for peripheral neuropathy due to complications of chronic alcoholism can only be granted if the evidence establishes that the Veteran's alcohol use was caused by a service-connected disability. The report of a July 2011 VA psychiatric examination shows that the Veteran has Axis I diagnoses of anxiety disorder, alcohol abuse, and cocaine abuse, and Axis II diagnosis of personality disorder, not otherwise specified, with antisocial features. In the clinical history portion, the July 2011 VA examiner noted that the Veteran informed the VA examiner that he had a life-long history of alcohol abuse, when he first used alcohol at age 12, and he began to consume alcohol regularly by age 15, prior to his enlistment into military service. Currently, the Veteran reported that he typically consumes one pint of vodka a day until he passed out. He also had a history of cocaine and heroin abuse. The Veteran further reported a family history of alcoholism, and he described his father as "an Irish drunk," whose death was alcohol-related. The July 2011 VA psychiatric examiner opined that Veteran's symptomatology due to his personality dysfunction and substance additions could be differentiated from his service-connected anxiety disorder. Specifically, the VA examiner identified that the Veteran's chronic irritability, mood swings, and legal issue were related to his personality disorder, alcohol abuse and cocaine abuse. The VA examiner further concluded that the Veteran's alcohol dependence and cocaine dependence predated his military career and his combat stressors. The VA examiner opined that the Veteran's anxiety disorder was more likely than not permanently aggravated by his combat stressors, which include fear of hostile military or terrorist activity. As noted above, the Veteran was awarded entitlement to service connection for anxiety disorder in the Board's September 2012 decision, which was implemented later that month by the RO's rating decision. Generally, the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Here, it is clear from the July 2011 VA examiner's medical opinion which signs and symptoms can be attributed solely to anxiety disorder and those associated with his personality disorder, alcohol abuse, and cocaine abuse. As such, the Veteran's history of alcohol abuse is separate and distinguishable from his service-connected anxiety disorder. Although the Veteran has been diagnosed with peripheral neuropathy, the evidence does not show that it is caused by his service-connected anxiety disability. No medical professional has provided any opinion indicating that the Veteran's alcohol use is secondary to his service-connected anxiety. The Veteran reported to the VA examiner that he started drinking regularly when he was 15 years old, well before his entrance into service. He also reported a family history of alcoholism. The July 2011 VA examiner concluded that his alcoholism was separate and distinguishable from his service-connected anxiety disorder. As the evidence does not support a finding that the Veteran's past history of alcohol abuse is secondary to his service-connected anxiety disorder, the evidence does not support a finding that service connection for peripheral neuropathy as due to alcohol abuse secondary to service-connected anxiety disorder. See 38 U.S.C.A. §§ 105(a) and 1131; and see also Allen v. Principi, 237 F.3d at 1381. Although the evidence does show that the Veteran's peripheral neuropathy is related to his history of alcohol use, the Board finds that the Veteran's alcohol use is not secondary to his service-connected anxiety disorder for the reasons set forth above when denying service connection for peripheral neuropathy. The Board acknowledges the Veteran's belief that his peripheral neuropathy associated with his alcohol use is related to his service-connected anxiety disorder. However, there is no evidence of record showing that the Veteran has the specialized medical education, training, and experience necessary to render competent medical opinion as to etiology of a disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). Consequently, the Veteran's own assertions as to etiology of a disability have no probative value. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection on a secondary service connection basis. ORDER Entitlement to service connection for peripheral neuropathy is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs