Citation Nr: 1324834	
Decision Date: 08/05/13    Archive Date: 08/13/13

DOCKET NO.  09-24 457	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities, to include as secondary to herbicide exposure.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

D. Cherry, Counsel


INTRODUCTION

The Veteran served on active duty from June 1966 to June 1969 with service in the Republic of Vietnam. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.  

In February 2013, the Board remanded the claim to the Appeals Management Center (AMC) for further development.


FINDING OF FACT

The preponderance of competent and credible evidence weighs against finding that bilateral peripheral neuropathy of the lower extremities was demonstrated in-service, that bilateral peripheral neuropathy of the lower extremities was compensably disabling within a year of separation from active duty, or that there is a nexus between a current diagnosis of bilateral peripheral neuropathy of the lower extremities and service, to include in-service herbicide exposure.


CONCLUSION OF LAW

Bilateral peripheral neuropathy of the lower extremities was not incurred in or aggravated by service, and bilateral peripheral neuropathy of the lower extremities may not be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in November 2007 and March 2013 (which was pursuant to the February 2013 Board remand) of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.  In the November 2007 letter, VA notified the appellant of how VA determines the disability rating and effective date.  The claim was most recently readjudicated in an April 2013 supplemental statement of the case.

VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording a VA examination.  The Veteran submitted private treatment records.  The RO obtained the service treatment records and afforded the appellant a VA examination (pursuant to the February 2013 Board remand).  With respect to the claim denied herein, the Board finds that the opinion is adequate to satisfy VA's duty to assist in that it was based on a thorough review of the record, consideration of the Veteran's contentions, and is supported by rationale.

Pursuant to another claim, the RO unsuccessfully attempted to obtain records from the Portland VA Medical Center from 1969 to 1970.  VA has a heightened duty to assist the appellant in developing her claim since government records may have been lost.  O'Hare v. Derwinski, 1 Vet. App. 365 (1991).  The case law does not, however, lower the legal standard for proving a claim for service connection but, rather, increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant.  See Russo v. Brown, 9 Vet. App. 46, 51 (1996).

In light of the above, the AMC complied with the directives of the Board remands.  Stegall v. West, 11 Vet. App. 268 (1998).

Governing law and regulations

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 

Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Certain chronic disabilities, such as peripheral neuropathy, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam War shall be presumed to have been exposed during such service to herbicide agents, unless there is affirmative evidence to establish that this veteran was not exposed to any such agent during that service.  With respect to peripheral neuropathy, the herbicide regulations provide that acute and subacute peripheral neuropathy can be attributable to Agent Orange exposure even though there is no record of such disease during service.  See 38 C.F.R. § 3.309(e).  However, the provisions of 38 C.F.R. § 3.307(a)(6) must be met and the rebuttable presumption provisions 38 C.F.R. § 3.307(d) must be satisfied.

For purposes of 38 C.F.R. § 3.309(e), the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to a herbicide agent and resolves within two years of onset.  
See 38 C.F.R. § 3.309, Note (2).

Acute and subacute peripheral neuropathy "shall have been 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 [that is, Agent Orange] during active military, naval or air service."  38 C.F.R. § 3.307(a)(6)(ii).

The presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition other than those for which the Secretary of VA has specifically determined that a presumption of service connection is warranted.  See 38 U.S.C.A. § 1116.

Notwithstanding the foregoing law and regulations pertaining to presumptive service connection, a veteran-claimant is not precluded from establishing service connection for diseases not subject to presumptive service connection with proof of actual direct causation.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Analysis

The Veteran's service records confirm that he served in the Republic of Vietnam.  Hence, the Board presumes that the Veteran was exposed to herbicides in service.  The appellant has a current diagnosis of bilateral peripheral neuropathy of the lower extremities.  
 
Nonetheless, the Board has reviewed all service treatment records, all private treatment records, and the VA examination report.  The preponderance of competent and credible evidence weighs against finding that bilateral peripheral neuropathy of the lower extremities was demonstrated in-service, that bilateral peripheral neuropathy of the lower extremities was compensably disabling within a year of separation from active duty, or that there is a nexus between a current diagnosis of bilateral peripheral neuropathy of the lower extremities and service, to include in-service herbicide exposure.

The Veteran asserts that he had peripheral neuropathy in service.  His service treatment records, however, show no complaints, symptoms, findings, or treatment of peripheral neuropathy of the lower extremities.  On the May 1969 separation examination, the lower extremities and the neurologic system were normal.  The appellant denied any history of foot trouble, neuritis, or paralysis.

Turning to the presumptions in 38 C.F.R. § 3.309(a) (chronic disease) and 38 C.F.R. § 3.309(e) (herbicide exposure), the Veteran last served in the Republic of Vietnam in June 1968 and was discharged from active duty in June 1969.  The competent medical evidence, however, does not show that the veteran had peripheral neuropathy within either of the one-year presumptive periods in 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.309(e).  The private medical evidence indicates that radiculopathy was first diagnosed in December 1996.  Bilateral peripheral neuropathy of the lower extremities was first diagnosed in November 2005 based on nerve conduction studies.

The March 2013 VA examiner opined that it was less likely than not that the bilateral peripheral neuropathy of the lower extremities was incurred in or caused by the claimed in-service injury, event, or illness.  The examiner noted that based on the available documentation, his peripheral neuropathy was most likely of relatively recent onset - in the past eight years or so - and was associated with monoclonal gammopathy, an abnormal protein produced by his body.  The examiner added that the appellant had a Vitamin B12 deficiency, which causes peripheral neuropathy.  The examiner stated that the claimant does not have a clinical picture of Agent Orange-associated peripheral neuropathy, which by VA's own definition appears within one year of exposure to Agent Orange to a degree of at least 10 percent disabling by VA's rating regulations and is temporary and resolves within two years.

The Board has considered the Veteran's assertion in his January 2009 notice of disagreement and at the March 2013 VA examination that his peripheral neuropathy manifested by numbness began in service and that he is competent to report this history of symptoms.  The Board, however, does not find him credible because of his conflicting reporting of symptomatology.  As noted above, the appellant denied any history of foot trouble, neuritis, or paralysis at his separation examination.  In his January 2009 notice of disagreement, the Veteran asserted that he choose to ignore his symptomatology and not report at his separation examination because it was more important for him to leave the military.  However, the Board finds the more contemporaneous denial to be inherently more credible than statements made decades later in support of a claim for monetary benefits.

The Veteran and his spouse have related his bilateral peripheral neuropathy of the lower extremities to active service.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the relationship between his peripheral neuropathy of the lower extremities and his military service, to include herbicide exposure, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). 

In summary, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against finding that his bilateral peripheral neuropathy of the lower extremities is related to service.  Therefore, the preponderance of the evidence is against the claim, and it is denied.


ORDER

Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities is denied.



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs