Citation Nr: 1324248	
Decision Date: 07/30/13    Archive Date: 08/07/13

DOCKET NO.  09-08 104	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for peripheral neuropathy of the lower extremities, bilaterally.  


ATTORNEY FOR THE BOARD

B. R. Mullins, Counsel


INTRODUCTION

The Veteran had active service from November 1966 to November 1969 with subsequent service in the Army Reserves.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, declining to reopen the claim of service connection for peripheral neuropathy for failure to submit new and material evidence.  

In a June 2010 decision, the Board reopened the issue currently on appeal, but denied service connection.  The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and in a July 2011 Memorandum Decision, the Court vacated the part of the Board's decision that denied service connection for peripheral neuropathy.  The issue was then remanded back to the Board.  The Court affirmed the parts of the Board's June 2010 decision that denied an increased disability evaluation for posttraumatic stress disorder and a claim for a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU).  Therefore, the only remaining issue on appeal is entitlement to service connection for bilateral peripheral neuropathy of the lower extremities.  


FINDING OF FACT

Peripheral neuropathy of the lower extremities did not manifest during, or as a result of, active military service.  


CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for peripheral neuropathy of the lower extremities, bilaterally, have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).






REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify

VA has a duty to notify and assist veterans 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).  
	
Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In addition, the 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 a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

A letter sent to the Veteran in April 2007 addressed all notice elements listed under 3.159(b)(1) and was sent prior to the initial RO decision in this matter.  The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content.  Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  



Duty to Assist

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  VA obtained the Veteran's service treatment records.  Also, VA has obtained the records of the Veteran's outpatient treatment with VA.  Significantly, the Veteran has not identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained.  

The Board recognizes that the Veteran has not been afforded a VA examination for his peripheral neuropathy claim.  However, there is no evidence of prejudice to the Veteran as a result of this.  In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration.  

These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. 

In this case, no examination is necessary in order to adjudicate the claim because the evidence fails to satisfy the McLendon criteria discussed above.  Specifically, there is no competent and credible evidence to suggest any potential relationship between the Veteran's current peripheral neuropathy and his military service.  Therefore, the Veteran was not prejudiced by the lack of VA examination.

Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Relevant Laws and Regulations

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.  Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  

To establish service connection, there must be:  (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)).  

Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service.  38 U.S.C.A § 1116(a)(1).  The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease.  38 C.F.R. § 3.307(a)(6)(ii).  The presumption may be rebutted by affirmative, though not necessarily conclusive, evidence to the contrary.  38 U.S.C.A. § 1113(a); 38 C.F.R. § 3.307(d).  

The following diseases are associated with herbicide exposure for purposes of the presumption: chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), but does not include cancer of the tongue.  38 C.F.R. § 3.309(e).  

A veteran who, during active military, naval or air service, served in Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a)(6)(iii).  

Furthermore, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  See 38 U.S.C.A. § 1116(f).  

"Service in Vietnam" means actual service in the country of Vietnam from January 9, 1962 to May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. § 3.307(a)(6)(iii); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).  (VA's requirement that a Veteran must have stepped foot on the landmass of Vietnam or the inland waters of Vietnam for agent orange/herbicide exposure presumption is a valid interpretation of the statute); VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off-shore of the Republic of Vietnam is not qualifying service in Vietnam).  In other words, for purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the serviceman must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict.  

Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence).  When considering whether lay evidence may be 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); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that " [w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  

Facts and Analysis

The Veteran contends that he is entitled to service connection for peripheral neuropathy of the lower extremities, bilaterally.  However, the preponderance of the evidence of record in this case demonstrates that peripheral neuropathy of either extremity did not manifest during, or as a result of, active military service.  

A review of the Veteran's service treatment records fails to reflect any treatment for, or complaints of, peripheral neuropathy or any associated symptomatology.  Records do reflect that the Veteran fell on his knee in October 1969.  However, X-rays revealed no abnormalities and there is no evidence of chronic symptomatology associated with this injury.  In fact, an evaluation of the Veteran's lower extremities performed as part of his October 1969 separation examination was deemed to be normal.  The Veteran also denied suffering from swollen or painful joints, cramps in the legs, arthritis or rheumatism, bone, joint or other deformity or neuritis in his report of medical history associated with this examination.  The examining physician indicated that there were no significant findings at this time.  As such, there is no evidence of peripheral neuropathy or any associated symptomatology during active military service.  

Post-service evidence also reflects that the Veteran was not suffering from symptomatology associated with peripheral neuropathy for many years following military service.  An evaluation of the lower extremities performed in February 1981 for an Army Reserves examination was deemed to be normal.  The Veteran again denied suffering from swollen or painful joints, cramps in his legs, arthritis, rheumatism or bursitis bone, joint or other deformity, or neuritis in his report of medical history associated with this examination.  As such, the evidence demonstrates that the Veteran was not suffering from symptoms of peripheral neuropathy as of 1981 - approximately 12 years after his separation from active duty.

In fact, the first evidence of record of neuropathy is from April 2003 - some 34 years after separation from active duty.  According to the Veteran's claim, peripheral neuropathy had existed since 1975.  The record does not contain any medical evidence in support of this assertion.  VA medical records from April 2003 do note a history of low back pain and a July 2003 record also notes complaints of generalized intermittent joint and muscle pain.  Finally, a June 2006 record also notes a one week flare of low back pain "now with bilateral radiation to the posterior thighs," while a March 2007 psychiatric note reflects a diagnosis of peripheral neuropathy.  None of this medical evidence suggests any potential relationship between peripheral neuropathy and military service.  

The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for peripheral neuropathy of the lower extremities.  There is no evidence of this condition during military service, and the Veteran himself denied symptomatology of the lower extremities such as painful joints or neuritis in 1969 and again in 1981.  In fact, the first evidence of record of peripheral neuropathy is the Veteran's original claim of April 2003 - approximately 34 years after separation from active duty.  When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence).  In the present case, the absence of any evidence of peripheral neuropathy or symptomatology for more than three decades tends to suggest that this condition has not existed since military service.  Finally, the record contains no competent and credible evidence suggesting any potential relationship between the Veteran's peripheral neuropathy of the lower extremities and his military service.  

The Board recognizes that the Veteran served in Vietnam and that he is presumed to have been exposed to Agent Orange as a result of this service.  Nonetheless, peripheral neuropathy is not one of the diseases that are presumed to be associated with exposure to herbicidal agents such as Agent Orange.  See 38 C.F.R. § 3.309(e).  While acute and subacute peripheral neuropathy are noted as presumptive diseases, this refers to 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.  See id at Note 2.  Therefore, the Veteran's currently diagnosed peripheral neuropathy does not qualify as acute or subacute.  The record contains no other evidence suggesting any possible linkage between herbicidal agents and peripheral neuropathy.  As such, the preponderance of the evidence of record demonstrates that service connection for peripheral neuropathy of the lower extremities is not warranted.  

The Board notes that the record also contains a statement from the Veteran's brother dated November 2006.  According to this individual, after the Veteran returned from service, he complained about numbness, burning and tingling in both of his legs.  The Veteran has also suggested that he did not have this symptomatology until he went into the service.  As lay persons, the Veteran and his brother are certainly competent to offer this kind of testimony.  However, the Board does not find it to be credible.  The Veteran himself denied symptoms such as neuritis or painful joints during his 1969 separation examination, and an evaluation of the lower extremities at this time was deemed to be normal.  The Veteran then denied such symptoms upon examination in 1981 and reported that he was in good health.  An evaluation of the lower extremities was again deemed to be normal.  It was not until the Veteran's claim of April 2003 that he reported an early onset of peripheral neuropathy (although he still claimed the condition first manifested in 1975 - or some 6 years after his separation from active duty).  The Board finds the assertions made by the Veteran at the time of service and within 12 years of separation from service to be more credible than assertions offered by the Veteran and his brother many decades after separation from active duty.  

Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The Veteran's claim of entitlement to service connection for peripheral neuropathy of the lower extremities, bilaterally, must be denied.







	(CONTINUED ON NEXT PAGE)
ORDER

Service connection for peripheral neuropathy of the lower extremities, bilaterally, is denied.  



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs