Citation Nr: 1336751 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 03-23 289 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for a disability manifested by neuropathy and weakness of the upper and lower extremities. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1966 to July 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Waco RO. The Veteran requested a Travel Board hearing; he requested a postponement when such hearing was initially scheduled (in February 2006), and failed to report when it was rescheduled (in March 2007). In December 2008, October 2010, and November 2012, the Board remanded the matter for additional evidentiary development. FINDING OF FACT A disability manifested by neuropathy and weakness of the upper and/or lower extremities was not manifested in service and is not shown to be related to the Veteran's service, to include as due to his herbicide exposure therein. CONCLUSION OF LAW Service connection for a disability manifested by neuropathy and weakness of the upper and lower extremities, claimed as secondary to herbicide exposure, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A May 2002 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing; a March 2006 letter also informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records are associated with the record. The RO arranged for VA examinations in January 2003 and September 2013, with supplemental medical opinions provided in February 2009 and November 2010. The Board finds the reports of these examination and supplemental opinions (cumulatively) to be adequate for rating purposes as they reflect a review of the Veteran's history and a physical examination that included all the necessary findings, and the opinions offered are accompanied by adequate explanation of rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran seeks service connection for a disability manifested by neuropathy and weakness of the upper and lower extremities based, in part, on exposure to Agent Orange in service. The Veteran's service personnel records show that he served in the Republic of Vietnam from August 1967 to July 1968, thus his exposure to Agent Orange is presumed. See 38 U.S.C.A. § 1116. The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis of peripheral neuropathy of an extremity. On July 1968 service separation examination, clinical evaluations of the Veteran's upper extremities, lower extremities, and neurological systems were normal. In the associated report of medical history, the Veteran denied having or having ever had neuritis. Postservice, the Veteran has sought treatment for numbness and weakness in his upper and lower extremities. In September 1994, he reported numbness in his right hand that progressed to tingling in the fingers of the right hand; the episode resolved within 24 hours and there were no associated neurologic symptoms such as weakness at that time. On January 2003 VA neurological examination, the Veteran reported having difficulty with weakness of his upper arms for approximately five years; he estimated that he had about 50 percent of normal strength in both arms and he believed it was getting worse. He also reported having difficulty with weakness of both thighs for the past three to four years, causing him difficulty managing stairs and kneeling or squatting down. Following a physical examination, the impression was neuropathic muscle weakness of both biceps and quadriceps muscle groups. The examiner stated, "Since neuropathies are presumptive conditions for Vietnam veterans, it would appear that this condition is service connectable." The examiner then noted that although dioxin exposure has been associated with chronic neurological sequela, such findings usually follow an acute toxic exposure where the patient becomes very ill, gets better, and then later develops weakness. The examiner found that this is not the case with the Veteran as he does not describe an overwhelming illness during military service; thus the examiner stated that he could not make an association with exposure to dioxin and opined that the Veteran "would appear to meet SC [service connection] criteria for Vietnam in-country effects based on the presence of neuropathy". In its December 2008 remand, the Board noted that the January 2003 VA neurological examination produced inconsistent findings regarding the etiology of the disability. In the remand, the Board instructed that the inconsistent opinions be reviewed and clarified. The remand instructions requested the proper diagnosis for the Veteran's neuropathy and weakness of the upper and lower extremities, an opinion regarding whether the diagnosed neurological disability is at least as likely as not related to service and/or exposure to Agent Orange in Vietnam, and a rationale for all opinions given. In February 2009, the January 2003 VA examiner submitted an opinion upon review of the record indicating, "The C-file does not show any evidence of [the Veteran's] having been seen or treated with complaints of his arms or his legs. The history is that he had had symptoms with his arms of 5 years duration and of his leg for three or four years duration. Therefore, the neuropathy is not acute or subacute. The etiology of this is indeterminate but it does not meet the criteria for neuropathy related to exposure to Agent Orange." In its October 2010 remand, the Board found the February 2009 VA opinion to be inadequate because it did not respond to all of the questions posed in the Board's December 2008 remand, did not identify the proper diagnosis for the Veteran's neurological disability of the upper and lower extremities, and did not indicate whether such disability is at least as likely as not related to the Veteran's active duty service on a basis other than as acute or subacute peripheral neuropathy secondary to Agent Orange exposure. The matter was remanded to obtain an addendum opinion from the January 2003/February 2009 VA examiner or, if that examiner was unavailable, to afford the Veteran a new VA examination and nexus opinion. A November 2010 VA opinion noted that the January 2003/February 2009 VA examiner was no longer a VA provider. Based on a review of the claims file the opinion stated, "The presumptive peripheral neuropathy condition for Agent Orange is acute or subacute resolving within 2 years. There are many causes of polyneuropathies and the etiology of many is never found (idiopathic)." In its November 2012 remand, the Board noted that the Veteran had not been afforded a new VA examination as instructed in the previous remand, citing several attempts by the RO to schedule such examination despite the Veteran's requests to reschedule and cancellations. The Board instructed that another attempt to have the Veteran examined to secure a nexus opinion was necessary. On September 2013 VA examination, the Veteran reported that he began having problems with neuropathy beginning in approximately 1983, with symptoms first manifested by weakness in the left thigh; he reported that he later began experiencing weakness in the right lower limb about five or six years later, in approximately 1988 or 1989. He reported that he also began having pain in both lower extremities at that time occurring only when he would walk. He reported that he began noticing "numbly" sensations in his feet in 1992 or 1993, accompanied by constant pain. He reported that he began noting arm weakness about the same time as his right lower limb weakness. The examiner noted that the Veteran had not had nerve studies done, he had no knowledge of any muscle enzymes being checked, he had had no lab workup for neuropathy, he had not had a muscle biopsy, and he had not seen a neurologist for his neuropathy symptoms. The Veteran reported that he was on statins since the late 1980s or early 1990s and was taken off the medication in 2008, and his muscle weakness had continued to worsen since that time. Following a physical examination, the examiner diagnosed idiopathic progressive polyneuropathy with a cited date of diagnosis of 2003. The September 2013 VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner opined that it is more likely than not (greater than 50 percent probability) that the Veteran has an idiopathic polyneuropathy (polyneuropathy of unknown cause), based on his reported symptoms of gradually progressive sensory changes in the feet and exam findings of symmetrically reduced ankle reflexes. The examiner opined that, in the absence of diabetes, it is more likely than not (50 percent or greater probability) that a given peripheral neuropathy condition with exam findings as seen in the Veteran is due to unknown causes. The examiner noted that the original diagnosis of polyneuropathy appears to have been made on 2003 VA examination. The examiner also noted there is no medical diagnosis of muscle weakness; although the Veteran demonstrated breakaway weakness on physical examination, the examiner opined that this was due to reduced patient effort and is a nonphysiologic finding that is inconsistent with a nerve or muscle process. The examiner further opined that there is no muscle atrophy or reflex changes to indicate an abnormal muscle or nerve condition in the Veteran's upper extremities. The examiner noted that proximal weakness, in general, is not a manifestation of peripheral neuropathy and stated that most neuropathic conditions are length-dependent, because the pathologic process involves the entire surface of the nerves, so that nerve impulses traversing longer nerves are most affected; typically, patients complain of symptoms in the toes first, with spread of the symptoms up to the feet, ankles, then legs, and fingers and hands, as shorter nerves are impacted over time. The examiner opined that it would be extremely unlikely that a patient would develop quadriceps weakness prior to having sensory changes, and it would be extremely unlikely for a peripheral neuropathy to affect one lower limb prior ot the other, because the neuropathies are usually symmetric and would affect both sides equally. The examiner also noted that the Veteran reported pain in the lower limbs with ambulation that stops with rest, which the examiner opined is inconsistent with pain from polyneuropathy. The examiner opined that, since no sensory changes were found in the upper limbs and there was no objective evidence of upper extremity weakness on examination, there is no disability entity of the upper extremities; there was also no objective weakness shown in the lower extremities to objectively identify a lower extremity muscle or weakness disability. The September 2013 VA examiner noted the Veteran's report of the onset of symptoms of unilateral proximal lower extremity weakness in 1983 and the onset of sensory symptoms about ten years later, in 1993. The examiner stated that, if the 1983 left lower limb proximal weakness was the initial manifestation of the Veteran's neuropathy (which he noted is inconsistent with the usual course of polyneuropathy), the symptom onset occurred approximately 15 years after separation from service and the presumed herbicide exposure. The examiner further stated that, if the 1993 onset of typical neuropathy symptoms of sensory changes was the initial date of onset of the neuropathy condition, then the disability began 25 years after the presumed herbicide exposure. The examiner opined that neither scenario is consistent with an acute or subacute peripheral neuropathy. The examiner opined that, because the Veteran's history, STRs, and examination are inconsistent with an acute or subacute peripheral neuropathy following exposure to Agent Orange, and since his symptoms did not commence within one year after the last date of presumed exposure during service, it is less likely as not (less than a 50 percent probability) that such disability is related to his active service, to include as due to any exposure to Agent Orange therein. The September 2013 VA examiner cited the February 2003 examiner's diagnosis of neuropathic muscle weakness of both biceps and quadriceps muscle groups in the presence of intact (normal) reflexes in the knees, noting there was no comment regarding upper extremity reflexes; the examiner found that for neuropathic weakness to occur in the quadriceps, it would be expected that there would be reduced knee reflexes, which the Veteran did not have at the time of the examination. The examiner found this to be an inconsistent finding and added that the Veteran continues to have normal knee reflexes at this time with no quadriceps weakness demonstrated. The examiner also found the February 2003 examiner's opinion, regarding dioxin exposure and meeting the service connection criteria based on the presence of neuropathy, to be an inconsistent statement; the examiner stated that the Veteran does not have evidence of acute or subacute peripheral neuropathy, therefore he does not appear to meet the service connection criteria for Vietnam in-country effects. The examiner concurred with the February 2009 VA medical opinion. Significantly, the Veteran's STRs are silent for neuropathy and/or weakness of the upper and lower extremities. Accordingly, the Board finds that service connection for a disability manifested by neuropathy and weakness of the upper and lower extremities on the basis that such disability became manifest in service and has persisted since is not warranted. The Veteran provides an alternate theory of entitlement to the benefit sought. He asserts that it is causally related to his exposure to Agent Orange in service. The law provides that, if a veteran was exposed to an herbicide agent during service, certain listed diseases shall be service-connected 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, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases afforded this presumption includes acute and subacute peripheral neuropathy. Note 2 to 38 C.F.R. § 3.309(e) defines acute and subacute peripheral neuropathy as "transient peripheral neuropathy appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset". Although there is evidence that the Veteran served in Vietnam and thus is presumed to have been exposed to herbicides, his specific type of peripheral neuropathy is not listed among the diseases enumerated under 38 C.F.R. § 3.309(e). Notably, his treatment records do not show that he has been given a diagnosis of acute and subacute peripheral neuropathy, the evidence does not show that his current neuropathy appeared within weeks or months of his exposure to Agent Orange, and his neuropathy has not resolved within two years of the date of its onset. Consequently, the herbicide exposure presumptive provisions of 38 U.S.C.A. § 1116 do not apply as to those disabilities. Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to Agent Orange is not precluded from establishing service connection for such disability as due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The record includes both medical evidence that tends to support the Veteran's claim that his neuropathy of the upper and lower extremities is related to Agent Orange exposure in service and medical evidence that is against the claim. When evaluating this evidence, the Board must analyze its credibility and probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In evaluating medical opinions, the Board may place greater weight on one medical professional's opinion over another's depending on factors such as reasoning employed by the medical professionals, and whether or not and to what extent they review prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). According to the Veteran, his neuropathy symptoms started in approximately 1983, or approximately 15 years after presumed herbicide exposure in service. The Board accords great probative weight to the September 2013 VA medical opinion against the Veteran's claim as it is the only opinion that reflects familiarity with the complete factual background and a review of the entire medical history, and includes a thorough and detailed explanation of rationale. The examiner pointed to the specific clinical data which make it unlikely that the Veteran's radiculopathy is one listed among the diseases which warrant presumptive service connection based on Agent Orange exposure. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects a "clinical data or other rationale to support his opinion"); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it must be clear from the record that an opinion provider "was informed of the relevant facts" when rendering a medical opinion). Because of the inconsistencies noted above the Board find the January 2003 VA examiner's opinion (which appears to support the Veteran's claim) lacking in probative value. Significantly, the September 2013 VA examiner pointed to specific clinical data which contradict the January 2003 VA examiner's opinion. The Veteran's own statements relating his neuropathy and weakness of the upper and lower extremities to his service, to include his exposure to Agent Orange therein, are not competent evidence, as he is a layperson, and lacks the training to opine regarding medical causation; whether a disease/condition is related to Agent Orange exposure is a medical question, and is not capable of resolution by lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim. Accordingly, the appeal in this matter must be denied. ORDER Service connection for a disability manifested by neuropathy and weakness of the upper and both lower extremities is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs