Citation Nr: 1326553 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-26 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for peripheral neuropathy of the upper and lower extremities of the left side. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from May 1960 to April 1969. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office. The Virtual VA paperless claims processing system contains additional VA records not relevant to this appeal. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam in 1966-67 and is presumed to have been exposed to certain herbicide agents. 2. The Veteran has been diagnosed with peripheral neuropathy of the upper and lower extremities. 3. The competent and credible lay and medical evidence shows that the Veteran's peripheral neuropathy of the upper and lower extremities first manifested greater than one year after last exposure to herbicide and greater than one year after active duty and was not caused or aggravated by any aspect of service including exposure to herbicide. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy of the upper and lower extremities of the left side on a direct or presumptive basis are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements apply to all five elements of a service connection claim. The five elements are: 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 v. Nicholson, 19 Vet. App. 473 (2006). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In December 2006, the RO provided notice that met the requirements. The notice explained the Veteran's and VA's respective responsibilities to obtain relevant evidence and all criteria for service connection including information on presumptive service connection for diseases based on exposure to herbicide and how to request a VA herbicide examination. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA and identified private medical records have been associated with the claims file. The duty to assist also includes providing a medical examination or obtaining a medical opinion when it is necessary to make a decision on a claim. The Veteran has not been provided a VA examination because the evidence of record is adequate to decide the claim for reasons provided below. Therefore, the Board concludes that the duties to notify and assist the Veteran have been accomplished. The Veteran served as a U.S. Marine Corps engineering equipment operator including service in the Republic of Vietnam. The Veteran contends that his peripheral neuropathy of the upper and lower extremities of the left side was caused by exposure to herbicides in Vietnam. 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; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, to include organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran's claimed peripheral neuropathy is a chronic disease, and service connection based on a continuity of symptoms must be considered. A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In this case, service personnel records showed that the Veteran served in Vietnam from October 1966 to September 1967 and is therefore presumed to have been exposed to certain herbicide agents. Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). For the purposes of the presumption, acute and subacute peripheral neuropathy currently means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent but resolves within two years of the date of onset. 38 C.F.R. § 3.309 (e) Note 2. Peripheral neuropathy must become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection. In August 2012, VA proposed an amendment to the regulations concerning presumptive service connection for disabilities associated with exposure to certain herbicide agents to clarify and expand the terminology regarding the presumption of service connection for peripheral neuropathy associated with exposure to certain herbicide agents. See 77 Fed. Reg. 47795 (Aug. 10, 2012). In the National Academy of Sciences' (NAS) report Veterans and Agent Orange: Update 2010, NAS concluded that early onset peripheral neuropathy associated with herbicide exposure is not necessarily a transient condition. NAS also reaffirmed the conclusion in its prior reports that data did not suggest that exposure to herbicides led to the development of delayed-onset chronic peripheral neuropathy. Peripheral neuropathy would still need to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it would no longer need to be transient. Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Of particular relevance to an analysis of medical evidence supporting such a nexus are factors such as whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner. Id. at 124. To require service connection for disabilities based on the opinion of individual doctors that there is a statistical correlation between Agent Orange exposure and a disease not otherwise on the Secretary's list of diseases caused by Agent Orange would circumvent the congressional mandate that the Secretary designate a disease as presumptively caused by Agent Orange when "the credible evidence for the association is equal to or outweighs the credible evidence against the association." It would also permit the opinions of individual doctors to trump the collective view of experts. See Nehmer v. U.S. Veterans' Admin., 712 F.Supp. 1404, 1412 (N.D.Cal.1989) ("a group of experts' decisions regarding which scientific studies are the most pertinent to understanding the health effects of Agent Orange exposure is perhaps the epitome of a scientific determination which this court is ill-equipped to review.) See also Polovick v. Shinseki, 23 Vet. App 48 (2009). A lay claimant is competent to provide testimony concerning factual matters of which he has firsthand knowledge (i.e., reporting something seen, sensed or experienced). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service treatment records are silent for any symptoms, diagnoses, or treatment for peripheral neuropathy. VA examinations in June and October 1969 are also silent for any symptoms, diagnoses, or treatment for peripheral neuropathy. The Veteran did sustain the amputation of a portion of his left ring finger in service and experienced residual numbness of the left hand. In November 1969, the RO granted service connection for residuals of the amputation including traumatic arthritis of the left fourth finger. VA and private treatment records from May 2000 to December 2002 show that the Veteran sought evaluation and treatment for left hand symptoms but also for neck and bilateral arm numbness. In May 2000, a private physician noted the Veteran's reports of bilateral hand numbness but also that he sustained a back injury in 1990 with residual back pain. The physician ordered neurologic testing. A magnetic resonance image (MRI) of the cervical spine obtained in July 2000 showed cervical spondylosis and disc bulging on several levels. The specific test results are not included in the private records. Nevertheless, in November 2000, the private physician diagnosed left arm and shoulder pain as cervical radiculitis. In January 2006, a VA nurse noted the Veteran's reports of numbness in the lower back and left leg. The Veteran reported receiving workup from his private physician for deterioration of nerves and vertebrae of the back. The Veteran also reported that he was "...exposed to Agent Orange in Vietnam and states had an exam here." The same day, a VA primary care physician referred to this encounter as an "agent orange test." The physician also noted that part of the private physician's workup showed a positive test for Lyme disease and that the Veteran was receiving intravenous treatment for peripheral neuropathy. In a September 2006 claim for service connection, the Veteran submitted the results of a MRI of the cervical spine with notations from his private physician indicating that the image correlated with diagnoses of cervical radiculopathy, peripheral neuropathy, and progressive idiopathic polyneuropathy. The physician did not refer to any aspect of military service including exposure to herbicide. The Board concludes that service connection for peripheral neuropathy of the upper and lower extremities on the left side is not warranted on either a direct or presumptive basis. The Board concludes that the Veteran is competent and credible to report his observed symptoms of pain, weakness, and numbness in his extremities because the symptoms are observable by a lay person and have been accepted by his attending VA and private medical providers. The Veteran is presumed to have been exposed to herbicide agents in service, and he has a current diagnosis of peripheral neuropathy. The Veteran is not competent to offer an opinion on the cause of the disease as it requires medical training. Further, the Veteran did not report the onset of symptoms earlier than 2000 with no continuity of symptoms since service. He did not provide lay evidence of any events, diseases, or injuries other than herbicide exposure. Service connection on a presumptive basis is not available because the Veteran's disease did not manifest to a compensable degree within one year of last exposure to the herbicide agents, which would have been not later than September 1968. Service records through April 1969 are silent for any neurological symptoms of the extremities. Service connection on a direct basis is not warranted because neurologic deficits of the upper and lower extremities were not reported by the Veteran or noted in VA and private medical records earlier than 2000. The diagnosis of peripheral neuropathy was first noted in 2006, many years after active service. Although the VA and private records do not contain a clear opinion on the etiology of the peripheral neuropathy, diagnoses and treatment were recorded and investigated in the context of cervical and lumbar spine disease and Lyme disease. Neither of these diseases was present in service or for many years after service. The Veteran contends that his peripheral neuropathy was caused by exposure to herbicide, but none of his attending clinicians including his private physician acknowledge herbicide exposure or mention that theory of causation. The Veteran does not claim nor do the records show that the disease manifested in service or was caused or aggravated by any aspect of service or secondary to any of his service-connected disorders. The Board acknowledges that a unique report of a VA herbicide exposure "test" is not of record. The VA primary care physician acknowledged the occurrence of this evaluation or test but made no further comments. That the Veteran was exposed to Agent Orange and has been diagnosed with peripheral neuropathy is not at issue. The Veteran does not contend and service and 1969 VA records do not show an onset of symptoms within one year of last exposure or discharge from active duty. Therefore, even if a separate report of an evaluation or test exists, a current diagnosis of peripheral neuropathy is already of record with no lay or medical evidence of the onset within one year of service or a continuity of symptoms after service. Even if a single VA examiner were to provide an opinion in support of direct service connection for late-onset peripheral neuropathy caused by herbicide exposure on a statistical basis, the opinion would be greatly outweighed by the extensive body of research by experts at the National Academy of Sciences (NAS). Moreover, there is no evidence that the disease presented in a unique way in this Veteran's case, and there is evidence of alternative causes including spinal and Lyme disease. Therefore, any such report would not add additional relevant evidence in support of direct service connection. The Board considered whether a VA examination is necessary to address a possible relationship of the disease to any aspect of service other than herbicide exposure. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In this case, there is competent and credible medical evidence of a current disability. The only event, injury, or disease that occurred in service was exposure to herbicide and the only evidence to suggest a relationship to this event is the Veteran's lay contention. Sufficient medical evidence in the determinations of the NAS' report and VA evaluation of the report shows that there is insufficient medical evidence that delayed onset peripheral neuropathy is directly caused by herbicide exposure. While there is evidence suggestive of an Agent Orange test, any alleged correlation between late onset peripheral neuropathy and Agent Orange would be greatly outweighed by the current medical and scientific evidence of record. Therefore, there is sufficient medical evidence to decide the claim for service connection on a direct basis, and a VA examination and opinion are not required. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for peripheral neuropathy of the upper and lower extremities of the left side is denied. ____________________________________________ B. MULLINS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs