Citation Nr: 1341689	
Decision Date: 12/17/13    Archive Date: 12/31/13

DOCKET NO.  12-30 388	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUE

Entitlement to service connection for peripheral neuropathy, to include as secondary to herbicide exposure and service-connected disabilities.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel



INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran served on active duty from November 1953 to March 1957, November 1958 to May 1974, and March 1977 to November 1979.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans (VA) Regional Office (RO) in Salt Lake City, Utah.

In July 2013, the Board determined that new and material evidence was required to reopen the claim, but that such evidence had been submitted.  The claim was reopened and remanded for further development.


FINDING OF FACT

Peripheral neuropathy is not etiologically related to herbicide exposure, and is not proximately due to or aggravated by the Veteran's service-connected disabilities.


CONCLUSION OF LAW

The criteria for service connection for peripheral neuropathy have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159 (2013).  Here, the Veteran was provided with the relevant notice and information in letters dated June 2011 and September 2013.  His claims were then readjudicated in a supplemental statement of the case dated October 2013.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  He has not alleged any notice deficiency during the adjudication of his claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim.  Here, the Veteran's service records, VA records, and lay statements have been obtained and associated with the claims file.  VA examinations and opinions were obtained which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed condition.  To the extent that one of the opinions resorts to speculation, that examiner provided an explanation for why that was the case.  Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).  VA's duty to assist with respect to obtaining relevant records and an examination has been met.  38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The claim was previously remanded in order to provide the Veteran with adequate notice regarding his claim, obtain outstanding VA treatment records, and obtain VA opinions addressing the etiology of his condition.  Those remand directives have been satisfied.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999).

II.  Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131.  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2013).

The Veteran's treatment records and examination reports clearly reflect a diagnosis of peripheral neuropathy.  Therefore, element (1) has been satisfied.

With respect to element (2), the Veteran has not alleged that he experienced peripheral neuropathy during service, and service treatment records do not reflect any such findings.  However, he has alleged that his condition is the result of exposure to herbicides during service.  His records show he served in the Republic of Vietnam from 1970 to 1971, and therefore it is presumed that he was exposed to herbicides.  See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307 (2013).  Therefore, element (2) is satisfied based upon this exposure.

With respect to element (3), regulations provide that if the Veteran was exposed to an herbicide agent during active service, acute and subacute peripheral neuropathy shall be service-connected if the requirements of 38 C.F.R. 3.307(a)(6) are met, even though there is no record of such diseases during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied.  38 C.F.R. § 3.309(e); 75 Fed. Reg. 53202-53216 (August 31, 2010).

The term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of onset.  38 C.F.R. § 3.309(e), Note 2.  In this case, the Veteran was initially diagnosed with peripheral neuropathy in 2004, many years after his exposure to herbicides.  Therefore, his condition does not fall within the definition of "acute or subacute" peripheral neuropathy.

Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

In support of his contention, the Veteran submitted treatise evidence which stated that "neurologic disorders related to toxicant exposure may be acute or delayed, and may produce temporary or long-lasting problems."  However, a VA examiner reviewed this evidence, and in an August 2013 opinion, stated that the study submitted by the Veteran ultimately concluded that there was inadequate or insufficient evidence of an association between the chemicals of interest and delayed or persistent peripheral neuropathy.  This opinion is consistent with a determination by the Secretary of VA that a presumption of service connection based on exposure to herbicides is not warranted for chronic peripheral neuropathy disorders.  It was specifically indicated that the National Academy of Sciences, after reviewing pertinent studies, did not find that the evidence warranted altering its prior determination that there was inadequate or insufficient evidence of an association between exposure to herbicide agents and the subsequent development of chronic peripheral neuropathy disorders.  See Notice, 75 Fed. Reg. 81332-81335 (2010).  Therefore, service connection for peripheral neuropathy due to herbicide exposure in service is not warranted.

The Veteran also alleges that his condition is secondary to his service-connected lumbar spine and bilateral knee disabilities.  In addition to the applicable legal criteria cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310 (2013).  A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997).

The claims file was reviewed by a VA examiner in September 2013.  He recorded a detailed history of the Veteran's peripheral neuropathy condition, including prior electromyography studies, as well as various findings from VA treatment records stating that neuropathy was likely due to glucose intolerance; that despite extensive work-up, the etiology of the Veteran's peripheral neuropathy is unclear; and that peripheral neuropathy was idiopathic versus prediabetic.  

The examiner ultimately concluded that neuropathy symptoms were attributable to three possible diagnoses: idiopathic (or unknown), probable inclusion body myositis, or possible bilateral S1 radiculopathy attributable to his service-connected lumbosacral strain with degenerative joint disease.  He cautioned that it was not possible to separate the symptom contributions of these three diagnoses, as they were superimposed.

However, none of the diagnoses identified by the examiner warranted a grant of service connection.  Idiopathic peripheral neuropathy, by definition, has an unknown etiology, and therefore it cannot be attributed to a service-connected disability.  The Board also denied service connection for myositis in July 2013, and therefore service connection cannot be granted as secondary to that condition.  In addition, while the examiner stated that the Veteran's condition may be radiculopathy attributable to his lumbosacral spine condition, the Board notes that the Veteran is service-connected for "chronic lumbosacral strain with degenerative joint disease with radiculopathy."  In other words, radiculopathy is already a service-connected manifestation.

Notably, the examiner did not identify the Veteran's bilateral knee disabilities as a cause of his peripheral neuropathy.  He also stated that peripheral neuropathy was not aggravated by the knee disabilities, based on VA records which noted that the Veteran was about 13 or 14 years removed from his knee arthroplasties, and the only noted residual was some pinching pain and catching in the knee associated with range of motion.  There was no indication of aggravation of peripheral neuropathy.

In sum, the competent medical evidence indicates that peripheral neuropathy is not caused or aggravated by the Veteran's knee disabilities.  It is also not caused by the Veteran's low back disability, and aggravation cannot be determined due to the superimposed nature of the various potential etiologies.  Additional findings in the Veteran's treatment records indicate the condition may be due to glucose intolerance or a prediabetic status, which do not provide a basis for service connection.  There is no competent medical opinion to refute the examiner's conclusions or to otherwise link the Veteran's peripheral neuropathy to a service-connected condition.

While the Board has considered the Veteran's own statements made in support of his claim, he has not demonstrated any specialized knowledge or expertise to indicate he is capable of offering competent medical opinions.  Although lay persons are nonetheless 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 etiology of peripheral neuropathy, to include as secondary to herbicides or another disability, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Therefore, the Veteran's statements are not sufficient to establish the nexus element of his claims.   In sum, the preponderance of the evidence is against the claim; therefore, service connection for peripheral neuropathy is denied 


ORDER

Service connection for peripheral neuropathy is denied.


____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs