Citation Nr: 1331343 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 05-35 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities (BUEs) and bilateral lower extremities (BLEs), to include secondary to service-connected varicose veins or Agent Orange herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from July 1961 to July 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board previously denied this claim in a September 2010 Board decision. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC or "the Court"). In September 2011, the Court issued an order granting a September 2011 Joint Motion for Remand (JMR), vacated the September 2010 Board denial, and remanded the issue for further development consistent with the terms of the JMR. Thereafter, the claim came before the Board again in May 2012 and January 2013 at which times the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in development of his claim, consistent with the terms of the JMR. The development being completed in substantial compliance with the prior Remands directives, the case is once again before the Board for appellate consideration. FINDING OF FACT 1. The Veteran served in Vietnam in 1971 and in Korea near the Demilitarized Zone (DMZ) in 1968 and 1969 and is presumed to have been exposed to Agent Orange herbicides. 2. The Veteran's peripheral neuropathy of the BUEs and BLEs was not manifested during service, was not manifested within one year after the Veteran's discharge from service, and is not otherwise attributable to service, to include exposure to Agent Orange. 3. The Veteran's peripheral neuropathy of the BUEs and BLEs is not due to or aggravated by his service-connected varicose veins. CONCLUSION OF LAW The criteria for entitlement to service connection for peripheral neuropathy of the BUEs and BLEs, to include secondary to service-connected varicose veins or Agent Orange herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, and 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Assist and Notify VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by a pre-adjudication letter sent to the Veteran in March 2004 and other letters sent to the Veteran in August 2005, March 2006, and June 2009. Those letters advised the Veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The 2006 and 2009 letters also explained how disability ratings and effective dates are determined and, thereafter, the claim was readjudicated several times, most recently in a July 2013 Supplemental Statement of the Case (SSOC). See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. All private and VA medical records identified by the Veteran have been obtained, to the extent possible. VA was only successful in obtaining part of the Veteran's service treatment records, to include from 1970 to 1982. VA attempted to rebuild the file from other sources, but these efforts were unsuccessful. Where "service medical records are presumed destroyed . . . the BVA's [Board's] obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened." O'Hare v. Derwinski, 1 Vet. App. 365, 367 (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 claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Further, there is no adverse presumption of service connection as a result of the loss of these records. Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). There is, however, an expanded duty to assist the Veteran in obtaining evidence from alternate or collateral sources. Id. The Board concludes VA has fulfilled this expanded duty to assist the Veteran. VA contacted the National Personnel Records Center (NPRC), which indicated STRs were released to the Columbia, SC regional office in June 1982. The RO was instructed to search for any additional records, but found no additional STRs. A letter was sent to the Veteran in June 2013 advising of the attempts to obtain the STRs and the negative results. The Veteran was asked to submit any records he had in his possession. Thus, the Board concludes the VA has exhausted all options to recover these records and any further efforts would be futile. The Veteran, also, has at no time referenced any other outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. With regard to service connection claims, the Court held in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded VA examinations in February 2010 and June 2012. An addendum opinion was provided in June 2013, and an independent medical opinion was obtained in July 2013 to ensure all possible theories of entitlement were addressed. The combined results and opinions obtained are adequate because they reflect thorough examination, to include all necessary diagnostic tests of all four extremities, a description of the Veteran's pertinent medical history, and a complete review of the claims folder. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Thus, the Board finds that VA has satisfied the duty to assist the Veteran and may proceed to consider the merits of the claim. Service Connection (Peripheral Neuropathy of the BLEs and BUEs) The Veteran believes he is entitled to service connection for peripheral neuropathy of the BLEs and BUEs under various theories. He indicates he recalls exposure to Agent Orange herbicides in Vietnam and Korea during his military service. (See, e.g. February 2005 Notice of Disagreement). He has a lengthy history with varicose veins on his legs, which are service-connected. The Veteran believes some of his historical manifestations, including of numbness, itchiness, and burning sensations, were incorrectly attributed to his varicose veins when they were really indicative of a separate neurological condition. (See, e.g. May 2006 RO Hearing Transcript). At the very least, he believes his service-connected varicose veins played a role in the development of neuropathy of the BLEs and BUEs. (Id.). Alternatively, he believes his peripheral neuropathy is directly related to his military service, to include a May 1970 motorcycle accident, which caused a 10 inch deep laceration of his right leg and in which he was hospitalized for two months. He endorses continuous symptoms in-service and since service, with treatment as early as 1983, within a year after separation from service. In general, in order to prevail on the issue of service connection the evidence 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Alternatively, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310. Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the pendency of this claim, 38 C.F.R. § 3.310 was amended, effective October 10, 2006. The amendments to this section are not liberalizing. Therefore, the Board will apply the former version of the regulation. Service connection may also be granted as a matter of presumption. Significantly, some diseases have been presumptively associated with exposure to certain herbicide agents. See 38 C.F.R. § 3.309 (2012). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service. A veteran 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran is also presumed to have been exposed to herbicides if he or she served in or near the Korean DMZ in an area in which herbicides are known to have been applied between April 1, 1968 and August 31, 1971. 38 C.F.R. § 3.307(a)(6)(iv). The Veteran's DD-214 indicates the Veteran did serve in Vietnam during the Vietnam Era as well as near the Korean DMZ in 1968 and 1969 and, therefore, he is entitled to the presumption of herbicide exposure. See 38 C.F.R. §§ 3.307, 3.309. A type of peripheral neuropathy is on the list of conditions presumptively associated with herbicide exposure. See 38 C.F.R. § 3.309(e). The condition, however, must be acute or subacute peripheral neuropathy and have become manifest to a compensable degree within a year after the last date on which the Veteran was exposed to an herbicide agent during active military service for the presumption to apply. See 38 C.F.R. § 3.307(a)(6)(ii) (emphasis added). (The Board notes that VA has issued a proposed rule regarding peripheral neuropathy and exposure to herbicide agents. See 77 Fed. Reg. 47795-97 (Aug. 10, 2012). It would change the characterization of the presumptive disease of peripheral neuropathy from "acute and subacute peripheral neuropathy" to "early-onset peripheral neuropathy." Id. However, the requirement that the peripheral neuropathy manifest to a compensable degree within one year would remain intact.) The Veteran's DD-214, in addition to confirming the Veteran's service in Korea and Vietnam, indicates the Veteran is in receipt of, among other things, the Vietnam Cross of Gallantry with Palm Device, indicative of his combat service. In Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996), the United States Court of Appeals for the Federal Circuit held that under 38 U.S.C.A. § 1154(b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service. However, 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. The Board has considered the Veteran's lay statements describing in-service incidents and symptoms in light of the circumstances of his combat service. All of these alternative theories are discussed below and have been considered. The Board, however, finds no provision in which entitlement to service connection for peripheral neuropathy of the BUEs and BLEs may be granted in this case. As noted above, the Veteran's service treatment records are partially missing and attempts to rebuild the file from other sources were incomplete. The salvageable records, however, confirm the Veteran's in-service motorcycle accident and 53 day hospitalization. The Veteran was hospitalized from May 1970 to July 1970 following a motorcycle accident where he collided with a truck. He was treated primarily for a 10 inch deep laceration of the right upper thigh, as well as right knee effusion and multiple abrasions of the bilateral forearms and elbows. The hospitalization records also noted a prior motorcycle accident in 1966 where the Veteran fractured several ribs and underwent a splenectomy. The 1970 hospitalization records indicate the laceration was without nerve or artery involvement and although resulted in infection and thrombophlebitis, the Veteran fully recovered upon discharge from the hospital. His service treatment records are otherwise silent as to any complaints, diagnoses, or treatment related to neurological abnormality. The May 1982 separation examination noted large veins in the legs as well as scars of the bilateral legs, but did not diagnose the Veteran with any neurological abnormality. After service, the Veteran was seen and treated privately for varicose veins of the bilateral legs in the 1980s, immediately after separation from service. Indeed, private treatment records indicate varicose veins surgery in July 1986 with problems persisting thereafter. Specific neurological complaints, however, are not noted at that time. The Veteran was also seen privately in May 1999 following a tractor injury in which a tractor ran over his left leg. The examiner noted contusion hematoma and varicose veins of the left leg, but the Veteran himself denied numbness or paresthesias at that time. No neurological abnormality was indicated. VA outpatient treatment records indicate "long term discomfort in his hands, feet, and legs" in 2004, decades after service. At that time, the neurological examination was largely normal. The examiner noted "knee and elbow areas have no pathological reflexes" and "sensation by touch of the upper extremities is normal." Peripheral neuropathy of the BLEs was first objectively confirmed and diagnosed in a February 2010 VA examination. At that time, the VA examiner noted the Veteran's long-standing complaints, but indicated he had never been afforded an EMG before. A nerve conduction velocity test was conducted at that time, which confirmed polyneuropathy of the BLEs of unknown cause. No testing on the BUEs was done at that time. The examiner found the peripheral neuropathy unlikely related to his military service, but did not provide a rationale for the opinion. The Veteran was afforded an additional VA examination in June 2012 where the examiner diagnosed the Veteran with sensorimotor polyneuropathy of axonal type. The examiner found the neuropathy present did not likely relate to Agent Orange exposure "since there is an extremely long time between his military service and the on-set of symptoms diagnosed as neuropathy." The examiner explained that Agent Orange related neuropathy typically begins in close proximity to the exposure, which is not the case here. The examiner further opined that the Veteran's neuropathy was not caused or aggravated by varicose veins. With regard to the Veteran's contention that his earlier 1980s symptoms attributed to varicose veins were misdiagnosed and should have been attributed to early signs of neuropathy, the examiner could not definitively comment other than to say the symptoms do tend to overlap, but there simply is no objective evidence supporting a diagnosis of peripheral neuropathy until decades after service. In any case, the examiner opined that the Veteran's symptoms of neuropathy did not manifest to a compensable degree during the first post-service year. The 2012 examiner further noted that nerve testing was being completed on the BUEs and an addendum would be provided thereafter. In June 2013, the 2012 VA examiner provided the results of the nerve testing of the BUEs, which confirmed peripheral neuropathy of the BUEs in addition to the already diagnosed peripheral neuropathy of the BLEs. The examiner further stated that the opinions rendered in 2012 are the same and that the etiology of the neuropathy is unknown but unrelated to Agent Orange or varicose veins. An independent medical opinion was also obtained in July 2013. Therein, the examiner detailed all the pertinent facts and completely reviewed the Veteran's claim file, to include the past VA examinations. The examiner first opined that it is "less likely than not" that there is a nexus of Veteran's claimed peripheral neuropathy to varicose veins. The examiner explained that anatomically, a nexus is not likely because one is a vascular problem whereas the other is a neurological problem. The examiner then opined that the Veteran's polyneuropathy is "less as likely as not" due to the in-service 1970 motorcycle injury and deep laceration to the right thigh. The examiner explained that the service treatment records ruled out neurovascular compromise or nerve injury to the local region of the right thigh. The examiner also addressed the Veteran's contentions that symptoms of numbness and tingling in the extremities began in service and continued since service. The examiner found those described symptoms "at least as likely as not" unrelated to the Veteran's present polyneuropathy of the BUEs and BLEs. The Veteran's current conditions are confirmed by EMG studies and are not related to past acute and subacute symptoms described by the Veteran. The Board finds the aggregate of the VA examinations and medical opinions obtained in this case persuasive. The aggregate of the opinions addressed all of the Veteran's alternative theories of entitlement and all the pertinent evidence. The examiners based their opinions on thorough examination, diagnostic testing, and a complete review of the claims folder. Also compelling is the fact that no medical professional has ever associated the Veteran's current polyneuropathy to any incident of his military service. Again, the Veteran claims he is entitled to service connection for peripheral neuropathy of the BUEs and BLEs under various theories. With regard to presumptive service-connection, the evidence does not support the presence of peripheral neuropathy to a compensable degree within one year of separation from the service. Cf. 38 C.F.R. § 3.309(e). The evidence also does not support the Veteran's peripheral neuropathy is directly attributable to any incident of service, to include the May 1970 motorcycle accident. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding where a presumption is found inapplicable, however, a claimant is not precluded from establishing service connection for disability due to proof of direct causation). That is, although the Veteran indicates various symptoms he had in-service and thereafter, the medical evidence does not support a diagnosis of peripheral neuropathy until 2010. The Board notes the Veteran did not have EMG nerve diagnostic testing prior to that time, but neurological abnormality was denied and ruled out both in-service and after service prior to 2010. For example, during the Veteran's May 1970 hospitalization, the Veteran's deep laceration was noted not to involve nerve or artery damage. His 1982 separation examination, moreover, was silent as to neurological complaints or abnormalities. The Veteran's varicose veins were privately treated through the 1980s, to include surgery in 1986, where no neurological complaints or abnormalities are noted. The Veteran specifically denied neurological complaints in May 1999 following a tractor injury to his leg, and neurological testing was normal at that time. In July 2004, a VA physician noted the Veteran's complaints of long term discomfort in his hands, feet, and legs, but also indicated that sensation by touch was normal at that time. In light of the medical evidence, the June 2012 VA examiner (with July 2013 addendum) opined that the Veteran's peripheral neuropathy was not manifested within the first year of separation from service and is unlikely attributable to Agent Orange exposure in light of the delayed on-set. Similarly, the July 2013 independent medical expert found it unlikely that the Veteran's polyneuropathy started in service or was otherwise due to any aspect of service, to include the May 1970 motorcycle accident. No medical professional has ever opined that the Veteran's current polyneuropathy is directly due to service or was manifested to a compensable degree within a year after separation from service. Indeed, as explained above, there is evidence to the contrary. For these reasons, the Board finds entitlement to service connection for neuropathy of the BUEs and BLEs due to in-service event or injury, to include Agent Orange exposure, not warranted. With regard to secondary service connection, the June 2012 VA examiner opined that the Veteran's varicose veins did not cause or aggravate his peripheral neuropathy. The examiner again reiterated in June 2013 that the opinion had not changed after BUE testing was complete. The July 2013 independent medical examiner similarly found that a relationship between varicose veins, which is a vascular condition, and peripheral neuropathy, which is a neurological condition, was anatomically improbable. No medical professional has ever opined that the Veteran's current polyneuropathy is due to or aggravated by his service-connected varicose veins. As explained above, there is evidence to the contrary. For these reasons, the Board finds entitlement to service connection for neuropathy of the BUEs and BLEs, claimed secondary to service connected varicose veins, not warranted. In short, the medical evidence indicates that the Veteran did not develop peripheral neuropathy in-service or within one year of separation from service; that the Veteran's peripheral neuropathy is not due to any incident of his military service, to include the May 1970 motorcycle accident or Agent Orange exposure; and that the Veteran's peripheral neuropathy is not due to or aggravated by his service-connected varicose veins. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for the Veteran's peripheral neuropathy of the BLEs and BUEs is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for peripheral neuropathy of the BUEs and BLEs, to include secondary to service-connected varicose veins or Agent Orange herbicide exposure is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs