Citation Nr: 1328508	
Decision Date: 09/06/13    Archive Date: 09/16/13

DOCKET NO.  13-18 058	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUES

1.  Entitlement to service connection for bilateral lower 
extremity neuropathy due to herbicide exposure.

2.  Entitlement to service connection for optical neuropathy 
due to herbicide exposure.


REPRESENTATION

Appellant represented by:	Tennessee Department of 
Veterans' Affairs


ATTORNEY FOR THE BOARD

J. Juliano, Counsel


INTRODUCTION

The Veteran served on active duty from December 1951 to 
December 1971.

These matters come before the Board of Veterans' Appeals 
(Board) on appeal from a November 2011 rating decision of 
the Department of Veterans Affairs (VA) regional office (RO) 
located in Nashville, Tennessee.

On his Form 9 substantive appeal, the Veteran requested a 
Travel Board hearing.  Subsequently, in July 2013, the 
Veteran returned a form letter to the Board having checked 
the box indicating that he wanted to withdraw his request 
for a Board hearing.  Therefore, the Veteran's request for a 
Board hearing is considered withdrawn, and these matters are 
ready for decision.

Please note this appeal has been advanced on the Board's 
docket pursuant to 38 C.F.R. § 20.900(c) (2012).  
38 U.S.C.A. § 7107(a)(2) (West 2002).



FINDINGS OF FACT

1.  The evidence does not demonstrate that the Veteran 
served in Vietnam or was exposed to herbicides during 
service.

2.  The preponderance of the evidence is against finding 
that the Veteran's bilateral lower extremity peripheral 
neuropathy is etiologically related to in-service herbicide 
exposure.  

3.  The preponderance of the evidence is against finding 
that the Veteran's right eye optic neuropathy is 
etiologically related to in-service herbicide exposure.  




CONCLUSIONS OF LAW

1.  Service connection for bilateral lower extremity 
neuropathy due to herbicide exposure is not warranted.  38 
U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 
3.303, 3.307, 3.309 (2012).

2.  Service connection for right eye optic neuropathy due to 
herbicide exposure is not warranted.  38 U.S.C.A. §§ 1110, 
1116, 1131, 5107 (West 2002); 38 C.F.R. 
§§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to 
assist provisions.  See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 
5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) 
(2012).

Under the VCAA, when VA receives a complete or substantially 
complete application for benefits, it is generally required 
to "notify the claimant and the claimant's representative, 
if any, of any information and any medical or lay evidence 
not previously provided... that is necessary to substantiate 
the claim."  38 U.S.C.A. § 5103(a)(1) (West Supp. 2012).  As 
part of that notice, VA must "indicate which portion of that 
information and evidence, if any, is to be provided by the 
claimant and which portion, if any, the Secretary... will 
attempt to obtain on behalf of the claimant."  38 U.S.C.A. 
§ 5103(a)(1) (West Supp. 2012).  The requirements apply to 
all five elements of a service connection claim: veteran 
status, existence of a disability, a connection between the 
veteran's service and the disability, degree of disability, 
and effective date of the disability.  See Dingess v. 
Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman 
v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).

The Board finds that VCAA letters dated in February 2011, 
September 2011, and October 2011 fully satisfied the duty to 
notify provisions.  See 38 U.S.C.A. § 5103(a) (West Supp. 
2012); 38 C.F.R. § 3.159(b)(1) (2012).  The VCAA letters 
informed the Veteran of what information or evidence was 
needed to support his claims, including claims based on 
Agent Orange exposure, what types of evidence the Veteran 
was responsible for obtaining and submitting to VA, and 
which evidence VA would obtain.  The notices also explained 
how VA assigns disability ratings and effective dates.  See 
Dingess, supra.

The Board also concludes that VA's duty to assist has been 
satisfied.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c) 
(2012).  All of the Veteran's VA treatment records and 
private treatment records have been associated with the 
claims file.  

With regard to the Veteran's service treatment records, the 
Board notes that these records appear to be fire-related, 
and that the RO has exhausted all administrative efforts to 
obtain the records or to verify any service in the Republic 
of Vietnam, including four requests to NPRC in February 
2011, March 2011, June 2011, and July 2011, which requests 
included the Veteran's name, dates of service, his service 
number, and last unit of assignment.  Negative replies were 
received in February 2011, June 2011, and September 2011.  
Also, in February 2011, the RO requested from the Veteran 
any evidence that he served in country in Vietnam, but no 
reply was received.  In October 2011, the RO notified the 
Veteran that his service records may have been destroyed in 
the NPRC fire in 1973 and requested that the Veteran submit 
copies of any records in his possession.  The Veteran 
replied in October 2011 that he had no other evidence to 
submit (except an enclosed statement).  

The Board is cognizant that in circumstances where service 
records have been lost or destroyed through no fault of the 
Veteran, VA has a heightened obligation to explain findings 
and conclusions and to consider carefully the benefit-of-
the-doubt rule, which the Board has done in this case.  See 
Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. 
Derwinski, 1 Vet. App. 365, 367 (1991).  It is noted, 
however, that the above case law does not 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 claimant.  See Russo v. Brown, 9 Vet. App. 
46 (1996).  Therefore, VA's duty to assist in attempting to 
procure the Veteran's service records has been satisfied.

VA's duty to assist also includes the duty to provide a VA 
examination when there is evidence of (1) a current 
disability, (2) an in-service event, injury, or disease, and 
(3) some indication that the claimed disability may be 
associated with the established in-service event, injury, or 
disease, but (4) insufficient competent medical evidence on 
file for the Secretary to make a decision on the claim.  
See 38 C.F.R. § 3.159(c)(4) (2012);  McLendon v. Nicholson, 
20 Vet. App. 79 (2006).

The Board acknowledges that the Veteran has not been 
provided with VA examinations relating to his claims.  The 
Board finds, however, that no VA examination is required 
because there is no competent evidence of record proving 
that the Veteran was exposed to Agent Orange in service (as 
exposure may not be presumed in this case, as explained in 
detail below) so as to trigger the duty to provide a VA 
examination.  See Bardwell v. Shinseki, 24 Vet. App. 36 
(2010) (holding that VA is not required to provide a medical 
examination when there is not credible evidence of an event, 
injury, or disease in service when it properly rejects the 
Veteran's lay testimony as being not credible); Duenas v. 
Principi, 18 Vet. App. 512 (2004).  The Board emphasizes 
that the Veteran has not offered any theory of entitlement 
other than as due to Agent Orange exposure in Vietnam, and 
that the Board is not obligated to investigate all possible 
theories of entitlement not raised.  See Robinson v. 
Mansfield, 21 Vet. App. 545 (2008).

As there is no indication that any failure on the part of VA 
to provide additional notice or assistance reasonably 
affects the outcome of this case, the Board finds that any 
such failure is harmless.  See Mayfield v. Nicholson, 19 
Vet. App. 103 (2005), reversed on other grounds, Mayfield v. 
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 

II. Analysis

The Board must assess the credibility and weight of all 
evidence, including the medical evidence, to determine its 
probative value, accounting for evidence that it finds to be 
persuasive or unpersuasive, and providing reasons for 
rejecting any evidence favorable to the claimant.  Equal 
weight is not accorded to each piece of evidence contained 
in the record; every item of evidence does not have the same 
probative value.  When all the evidence is assembled, VA is 
responsible for determining whether the evidence supports 
the claim or is in relative equipoise, with the Veteran 
prevailing in either event, or whether a preponderance of 
the evidence is against the claim, in which case, the claim 
is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service connection may be established for a disability 
resulting from personal injury suffered or disease 
contracted in the line of duty in the active military, 
naval, or air service. 38 U.S.C.A. § 1110 (West 2002).  That 
an injury or disease occurred in service is not enough; 
there must be chronic disability resulting from that injury 
or disease.  If there is no showing of a resulting chronic 
condition during service, then for some chronic diseases, a 
showing of continuity of symptomatology after service is 
required to support a finding of chronicity. 38 C.F.R. § 
3.303(b) (2012).  Service connection may also be granted for 
any injury or disease diagnosed after discharge, when all 
the evidence, including that pertinent to service, 
establishes that the disease or injury was incurred in 
service. 38 C.F.R. § 3.303(d) (2012).

To establish a right to compensation for a present 
disability, a Veteran must show: "(1) the existence of a 
present disability; (2) in-service incurrence or aggravation 
of a disease or injury; and (3) a causal relationship 
between the present disability and the disease or injury 
incurred or aggravated during service" - the so-called 
"nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 
1167 (Fed. Cir. 2004).

A.  Bilateral peripheral neuropathy

The Veteran served on active duty from December 1951 to 
December 1971 in the Air Force.  See DD Forms 214.  He 
claims that he has bilateral lower extremity peripheral 
neuropathy due to exposure to Agent Orange during service in 
Vietnam from July 1967 to July 1968.

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); 38 C.F.R. § 3.307(a)(6)(iii) (2012).

In the case of veterans who have been exposed to an 
herbicide agent during active service, 38 C.F.R. § 3.309(e) 
provides presumptive service connection for certain listed 
diseases, including acute and subacute peripheral 
neuropathy.  See also 38 U.S.C.A. § 1116.  

The Veteran's DD Forms 214 reflect that he is the recipient 
of the Vietnam Service Medal and the Republic of Vietnam 
Campaign Medal.  The notation of such medals on the 
Veteran's DD Form 214 does not, however, constitute 
conclusive evidence of service in country in Vietnam.  See 
Executive Order No. 11231 (July 8, 1965) ("to members of the 
armed forces who serve[d] in Vietnam or contiguous waters or 
air space"); see also Department of Defense Manual 1348.33.  
Regrettably, as explained in the VCAA section above, the 
Veteran's service records have been found to be unavailable.  
There is no other documentary evidence of record showing 
that the Veteran served in country in Vietnam.  Therefore, 
the preponderance of the evidence is against a finding that 
the Veteran had in-country service in Vietnam, and herbicide 
exposure may not be presumed.  See 38 U.S.C.A. § 1116(f) 
(West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012).  

Even if herbicide exposure could be presumed based on 
service in-country in Vietnam, there is no medical evidence 
reflecting that the Veteran has "acute" or "subacute" 
peripheral neuropathy, the types of peripheral neuropathy 
listed in 38 C.F.R. § 3.309(e) for which presumptive service 
connection may be granted.  See, e.g., Private Treatment 
Records, Dr. R.T., July 2010; Methodist Healthcare (EMG 
Testing), September 2008.  In other words, without diagnosed 
acute or subacute peripheral neuropathy, there can be no 
presumptive service connection under 38 C.F.R. § 3.309(e).

The Veteran is not, however, precluded from proving actual 
exposure to Agent Orange in service, and then entitlement to 
service connection on a direct basis.  See Haas v. Peake, 
525 F.3d 1168, 1193 (Fed. Cir. 2008) ("even servicemembers 
who are not entitled to the presumption of exposure are 
nonetheless entitled to show that they were actually exposed 
to herbicides"); Combee v. Brown, 5 Vet. App. 248 (1993).

In this regard, the Board notes that the only evidence of 
record regarding whether the Veteran was exposed to Agent 
Orange in service are his own statements to that effect.  
The Board finds that the Veteran's own assertions that he 
was exposed to Agent Orange in service to be so general and 
speculative on their face as to not constitute competent and 
credible evidence of actual exposure.  In this regard, the 
Board notes that the Veteran has not provided any details as 
to the circumstances of his exposure except to assert that 
chemicals were used at Bien Hoa Air Base, where contends 
that he was stationed, or why he believes that the chemicals 
were in fact Agent Orange.  Therefore, given the lack of any 
details regarding the Veteran's alleged exposure to Agent 
Orange in service, the Board finds that there is not 
sufficient evidence to even bring it into relative equipoise 
as to whether he had actual exposure, and the Board finds 
that the preponderance of the evidence is therefore against 
finding that he had actual exposure to any herbicides in 
service.  The Board also reiterates that there is also no 
evidence establishing that the Veteran ever served in 
Vietnam, including at the Bien Hoa Air Base.

As a final matter, the Board acknowledges certain private 
medical opinions submitted by the Veteran in support of his 
claim.  While the Board acknowledges a July 2011 letter from 
Dr. R.T. in which he noted that the Veteran reported to him 
a history of exposure to Agent Orange in Vietnam, and he 
noted that he was aware of scientific reports linking dioxin 
to peripheral neuropathy, the Board notes that the mere 
transcription of the Veteran's lay history of in-service 
exposure does not otherwise transform the evidence into 
medical evidence of actual exposure.  See LeShore v. Brown, 
8 Vet. App. 406 (1995).  Moreover, Dr. R.T.'s July 2011 
opinion that he was aware of scientific reports linking 
dioxin to peripheral neuropathy is merely speculative in 
nature, similar to his prior December 2010 letter in which 
he wrote that Agent Orange "could have precipitated his 
neuropathy" (emphasis added) but that the etiology was not 
determined.  

As noted above, in-service herbicide exposure is the 
Veteran's only theory of entitlement and the only one raised 
by the record.  The Board notes that it is not required to 
address every other possible theory of entitlement sua 
sponte.  See Robinson v. Mansfield, 21 Vet. App. 545 (2008).  

In summary, the Board finds that the preponderance of the 
evidence is against granting service connection for 
bilateral lower extremity peripheral neuropathy, and the 
benefit-of-the-doubt rule is not for application; there is 
not an approximate balance of evidence.  See 38 U.S.C.A. § 
5107(b); See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 
Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).

B.  Optic Neuropathy

The Veteran also claims that he has right eye optic 
neuropathy due to in-service Agent Orange exposure in 
Vietnam.

The Board acknowledges that private medical evidence of 
record shows diagnosed right eye optic neuropathy.  See, 
e.g., May 2011.  For the same reasons discussed above, 
however, the Board finds that the Veteran is not entitled to 
presumed herbicide exposure due to a lack of evidence of 
service in-country in Vietnam, and actual herbicide exposure 
has not otherwise been established.  Therefore, there can be 
no service connection for right eye optic neuropathy based 
on Agent Orange exposure.  The Board adds that even if 
presumed or actual herbicide exposure was established, optic 
neuropathy is not included in the list in 38 C.F.R. § 
3.309(e) for which presumptive service connection may be 
granted.

In-service herbicide exposure is the Veteran's only theory 
of entitlement and the only one raised by the record, and 
the Board notes that it is not required to address every 
other possible theory of entitlement sua sponte.  See 
Robinson v. Mansfield, 21 Vet. App. 545 (2008).  

Therefore, in light of the above, the Board finds that the 
preponderance of the evidence is against granting service 
connection for right eye optic neuropathy due to Agent 
Orange exposure, and the benefit-of-the-doubt rule is not 
for application; there is not an approximate balance of 
evidence.


ORDER

Entitlement to service connection for bilateral lower 
extremity neuropathy as due to Agent Orange exposure is 
denied.

Entitlement to service connection for right eye optic 
neuropathy as due to Agent Orange exposure is denied.



_________________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs