Citation Nr: 1324388	
Decision Date: 07/31/13    Archive Date: 08/07/13

DOCKET NO.  05-02 710	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for peripheral neuropathy, to include as due to exposure to herbicides.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

J. W. Loeb

INTRODUCTION

The Veteran served on active duty from March 1969 to November 1970, to include service in Vietnam. 

This case originally came before the Board on appeal of a February 2006 rating decision.  In June 2012, the Board of Veterans' Appeals (Board) denied service connection for a skin condition, to include as due to exposure to herbicides, and remanded the issue listed on the title page to the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama to obtain a 2010 VA Nerve Conduction Study (NCS) and an additional nexus opinion on whether the Veteran's peripheral neuropathy is causally related to service exposure to herbicides.  

As a December NCS report and a July 2012 VA opinion were obtained and added to the claims files, there has been substantial compliance with the June 2012 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) ((Holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives)). 

The Veteran testified at a travel board hearing before the undersigned in June 2009, and a transcript of the hearing is of record.


FINDING OF FACT

The Veteran does not have peripheral neuropathy that began in service or within a year of discharge or is the result of a disease or injury in service, to include exposure to herbicides.




CONCLUSION OF LAW

Peripheral neuropathy was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim.  38 U.S.C.A. §§ 5102, 5103.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. 

The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  A letter was sent to the Veteran in October 2005, prior to adjudication, informing him of the requirements needed to reopen a claim for service connection and to establish entitlement to service connection.  The claim was reopened by a Board decision in July 2009.

In accordance with the requirements of VCAA, the October 2005 letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain.  No additional private medical evidence was subsequently added to the claims file after the letter.  In compliance with the duty to notify, the Veteran also was informed in an August 2009 letter on disability ratings and effective dates.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim.  VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159.  A VA evaluation with nexus opinion was obtained in July 2012.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the July 2012 VA examination and opinion obtained in this case is adequate, as it is based on a reading of the service and post-service medical records in the Veteran's claims files and the recent examination findings.  There is adequate medical evidence of record to make a determination on the issue decided in this case.  Accordingly, the Board finds that VA's duty to assist by obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).   

The Veteran has been given ample opportunity to present evidence and argument in support of his claim, including at his June 2009 personal hearing.  The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007).  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  The Veteran was assisted at the hearing by his accredited representative from Disabled American Veterans.  The representative and the undersigned asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disability is related to his complaints during service.  They also asked questions to ascertain the existence of any outstanding potential available evidence to substantiate the claim.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection.  Therefore, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).


Analysis of the Claim

The Veteran contends that he has peripheral neuropathy as a result of service, to include exposure to herbicides while in Vietnam.

Service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). 

In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Service connection may be presumed for certain chronic diseases, such as peripheral neuropathy, that are manifested to a compensable degree within one year after separation from service.  38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. § 3.307, 3.309(a) (2012).
For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on 
January 9, 1962, and ending on May 7, 1975, 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) (West 2002 and Supp. 2012). 

The following diseases are deemed associated with herbicide exposure, under VA law:  amyloidosis, chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease, B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma.  The foregoing diseases 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(e).  Note 2: 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.

A disease associated with exposure to herbicide agents listed in § 3.309 will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during service, provided that the disease listed shall have become manifest to a degree of 10 percent or more at any time after service.  38 C.F.R. § 3.307(a)(6)(ii). 

The Veteran in this case had service in Vietnam and is therefore presumed to have been exposed to Agent Orange.  See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. 

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.  

Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(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 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).   

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file.  Prejean v. West, 13 Vet. App. 444 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998).  See also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345 (1998).

In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); see Shipwash v. Brown, 8 Vet.App. 218 (1995); Flash v. Brown, 8 Vet.App. 332 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the Veteran's claims folder); but see  D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history).

As a general matter, the separation examination report was generated with a view towards ascertaining the Veteran's then-state of physical fitness; it is akin to a statement of diagnosis or treatment and is therefore of increased probative value, reflecting the Veteran's then state of physical fitness.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).

The Veteran's service treatment records do not reveal any complaints or findings of peripheral neuropathy, including on his November 1970 separation medical history and examination reports.  

According to a doctor's statement from T.G. Mulpur, M.D., who treated the Veteran on two occasions in August 2001, a neurological evaluation revealed sensory and motor peripheral polyneuropathy involving both upper and lower extremities.

According to the Veteran's April 2002 application for service connection dated in April 2002, his peripheral neuropathy began in 1975 and was treated in August 2001.

VA treatment reports dated from October 2003 through October 2008 reveal a diagnosis in October 2003 of a history of peripheral neuropathy with a negative neurologic examination.  The Veteran complained on evaluation in early February 2004 of numbness and tingling; no neurological abnormality was found.  He complained on Agent Orange (AO) evaluation later in February 2004 of decreased sensation over the hands and feet, in a glove and stocking type of distribution.  The assessment in May 2005 was polyneuropathy of the upper and lower extremities, motor and sensory.  Cervical radiculopathy was diagnosed on a September 2005 electromyogram (EMG)/NCS.  

The Veteran testified at his June 2009 travel board hearing that he had numbness and pain in the right upper extremity when he returned from Vietnam, for which he was treated by a VA doctor at the Dayton VA Medical Center in the 1970's; and that he was told by a physician that his neuropathy was probably related to exposure to AO.  The Veteran's wife also testified in support of the claim.

Also on file is a January 2010 Formal Finding on the Unavailability of VAMC Treatment Records from the Dayton VAMC in the 1970's.

According to lay statements from the Veteran's wife, brother, and fellow soldier, which were added to the claims files in February 2010, the Veteran was exposed to AO in service.  The Veteran's brother reported the Veteran's complaints of numbness in the neck since service.

The Veteran reported on VA evaluation in December 2009, which included review of the claims folder, that he began having numbness in the fingers of his right hand in 1972.  The examiner noted that the September 2005 NCS results were compatible with chronic, very mild ulnar neuropathy, indicative of mild right carpal tunnel syndrome (CTS) and ulnar neuropathy, with no evidence of right cervical radiculopathy.  The diagnosis was right CTS with ulnar neuropathy.  The examiner concluded that the Veteran's neuropathy was less likely as not caused by or a result of military service because his service separation examination was normal, because there was no documentation of neuropathy until 2001, and because CTS is usually the result of repetitive motor activities and the Veteran was employed as an assembly line worker/forklift operator.

The Veteran was examined by VA in November 2010 for peripheral neuropathy.  He reported that he had stopped working as a forklift operator in 1998.  It was noted that a NCS in January 2010 was indicative of a mild right CTS and ulnar neuropathy and that a NCS in September 2010 was essentially normal.  The examiner indicated that an additional NCS had been ordered in November 2010.  A VA NCS in December 2010 was indicative of a mild left CTS; there was no evidence of peripheral neuropathy of the left lower extremity.

A VA peripheral neuropathy evaluation, which included review of the claims files, was obtain in July 2012 in response to the June 2012 VA remand.  Bilateral CTS and bilateral ulnar compression syndrome were diagnosed.  It was noted that a May 2012 EMG showed bilateral CTS and left ulnar compression syndrome.  The examiner concluded that the Veteran's current neuropathy conditions were less likely as not related to, or caused by, his active service, to include exposure to AO.  The reasons for this opinion are that the Veteran's service treatment records do not reveal any neuropathy, that the medical evidence does not show the presumptive condition of acute and subacute transient peripheral neuropathy, that the NCS/EMG studies do not show a bilateral lower extremity neuropathy, and that the bilateral upper extremity CTS and ulnar compression are compression syndromes due to compression of the nerve at the wrist and elbow as the result of repetitive motion injuries/residuals most likely related to his civilian occupation.  In other words, the Veteran's peripheral neuropathy is not due to a metabolic process.

VA treatment records dated through June 2013 reveal continued treatment for the Veteran's upper extremity complaints.

The evidence noted above reveals that there were no complaints or findings indicative of peripheral neuropathy in service, including on separation evaluation in November 1970, and that the initial notation of evidence related to peripheral neuropathy was not until August 2001, which is more than 30 years after service discharge.  Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  The Board would also note that the Veteran indicated on his original claim for benefits in April 2002 that his peripheral neuropathy began in 1975, which is still several years after service discharge.  Attempts were made to obtain relevant VA treatment records from the 1970's, but it was determined that any possible records were unavailable.

Although acute and subacute peripheral neuropathy are included in the list of disabilities that warrant presumptive service connection, the peripheral neuropathy diagnosed since 2001is not acute or subacute peripheral neuropathy, as noted on VA evaluation in July 2012, since it did not manifest within weeks or months of exposure to an herbicide agent and resolve within two years of onset.  Additionally, the recent VA nexus opinions on file dated in December 2009 and July 2012, which are based on examination of the Veteran and review of the claims files and contain a supporting rationale, are against the claims.  There is no medical opinion in favor of the claim.

Consequently, service connection for peripheral neuropathy, to include as due to exposure to herbicides, is not warranted.
Due consideration has been given to the hearing testimony and written statements on file in support of the Veteran's claim.  Although the Veteran and other lay persons can provide competent evidence as to his subjective symptoms, such as pain, testimony and statements cannot provide competent evidence to establish the etiology of any current diagnosis.  Laypersons are not competent to provide evidence in certain medical situations, to include whether certain disabilities not listed in 38 C.F.R. § 3.309(e) are due to exposure to herbicides.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  The disability at issue is of such complex nature that it does not lend itself to a lay diagnosis by someone who has not been shown to have had medical training.

In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim denied above, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for peripheral neuropathy is denied.



____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs