Citation Nr: 1342853 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-25 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for peripheral neuropathy of the right lower extremity. 3. Entitlement to service connection for peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to April 1969. This appeal comes before the Board of Veterans' Appeals (Board) from March 2008 and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Virtual VA paperless claims processing system contains a November 2013 brief by the Veteran's representative that has been considered. FINDINGS OF FACT 1. The Veteran has been diagnosed with PTSD caused by fear of hostile action in service in the Republic of Vietnam 2. The Veteran's bilateral peripheral neuropathy of the lower extremities first manifested greater than one year after active service and was not caused or aggravated by any aspect of service including exposure to designated herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2013). 2. The criteria for service connection for peripheral neuropathy of the right lower extremity are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). 3. The criteria for service connection for peripheral neuropathy of the left lower extremity are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 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). Regarding the claim for service connection for PTSD, the Board is granting in full the benefit sought on appeal. As the Board is granting the claim for service connection, the claim is substantiated, and there are no further notice and assistance requirements. Wensch v. Principi, 15 Vet App 362, 367-68 (2001). Regarding the claims for service connection for bilateral peripheral neuropathy of the lower extremities, in January 2008, the RO provided a notice that met the requirements. The notice provided all criteria to substantiate the claim on a direct and presumptive basis and explained the Veteran's and VA's respective responsibilities to obtain relevant evidence. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment, post-service VA treatment, Social Security Administration (SSA), and identified private treatment records have been obtained and 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 was not provided a VA examination for bilateral peripheral neuropathy of the lower extremities for reasons provided below. As VA has satisfied its duties to notify and assist the Veteran, the Board will proceed to review and decide the claims based on the evidence that is of record. II. Analysis The Veteran served as a U.S. Army field communications technician with service in the Republic of Vietnam. In a December 2007 claim and in a June 2010 substantive appeal, the Veteran contended that his bilateral peripheral neuropathy of the lower extremities was caused by exposure to herbicide agents in Vietnam. In statements in February and April 2009 and in the substantive appeal, the Veteran contended that he received a shrapnel wound, that his PTSD first manifested upon return from Vietnam, and that the disorder was caused by traumatic events in combat action. Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). 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. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Posttraumatic Stress Disorder Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the diagnosis must comply with the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, 1994 (DSM-IV)); in certain circumstances, credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125 (2013); see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Under DSM-IV, a stressor is a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or event that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others; and (2) the person's response involved intense fear, helplessness, or horror. A stressor must consist of an event during such service that is outside the range of usual human experience and such that would be markedly distressing to almost anyone, such as experiencing an immediate threat to one's life or witnessing another person being seriously injured or killed. It is the distressing event, not mere presence that constitutes a valid stressor. Zarycki v. Brown, 6 Vet. App. 91, 99 (1994). Service in a combat zone is stressful to some degree to all who are there, whatever their duties or experiences. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also VAOPGCPREC 12-99 (Oct. 18, 1999) (cited at 65 Fed. Reg. 6257 (2000)) ("the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality"). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy," as established by recognized military combat citations or other official records. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, the veteran's lay statements alone may establish occurrence of the claimed in-service stressor, in the absence of clear and convincing evidence to the contrary, as long as the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f); see Zarycki, 6 Vet. App. at 98. For claims that were appealed to the Board but not decided as of July 13, 2010, changes to the applicable regulations are in effect as follows. If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3); 75 Fed. Reg. 39843 (Jul. 13, 2010). "Fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The occurrence of an event alleged as the "stressor" upon which a PTSD diagnosis is based (as opposed to the sufficiency of the alleged event to cause PTSD) is an adjudicative determination, not a medical determination. Zarycki, 6 Vet. App. at 97-98. Service personnel records show that the Veteran served in Vietnam from April 1968 to April 1969. He was assigned duties as a field wireman with the 40th Signal Battalion. Excerpts from an unidentified textbook downloaded from a U.S. Army internet site, apparently obtain by the RO, are associated with the file and indicate that this unit was responsible for running communications cables in the field. Service personnel and treatment records do not show that the Veteran was wounded or that he received a Purple Heart Medal. In February 2009 and April 2009 statements and in several mental health treatment encounters, the Veteran reported that he was in a vehicle convoy and witnessed the deaths of several Marines when their vehicle was destroyed by a land mine. In a July 2009 notice of disagreement, he noted that he was wounded in the attack. He also reported that he was in areas of mortar and artillery fire while laying telephone cable and that he engaged and killed an enemy soldier in a sniper attack. VA outpatient treatment reports show that the Veteran was examined and treated at a VA mental health clinic from January 2009 to March 2011. On several occasions, the same VA psychologist assessed his mental health status. The psychologist noted the Veteran's report of the combat events, primarily the death of one of the Marines. The psychologist noted symptoms of flashbacks, avoidance behavior, and startle reaction but did not rigorously discuss how the Veteran's symptoms met the DSM-IV criteria for PTSD. Nevertheless, the psychologist diagnosed PTSD and depressive disorder and prescribed treatment for "trauma processing." In treatment encounters in 2011, the psychologist continued to diagnose PTSD associated with the Veteran's reported traumatic experiences but also noted serious family illnesses as causes for depression. In April 2009, a private psychologist provided a "second opinion" at the request of the Veteran. The psychologist noted the same traumatic experiences and an additional witnessing of a civilian death in a non-combat event that occurred in Vietnam. The psychologist noted symptoms of intrusive thoughts, hypervigilance, and sleep problems, the latter made more severe by a recent personal assault. The psychologist did not provide a rigorous discussion of how these symptoms met the DSM-IV criteria, but he did diagnose "PTSD related to Vietnam." He also diagnosed major depression and mentioned chronic back and joint pain and the deployment of the Veteran's son to a combat area but did not specifically associate the depression with any particular cause. SSA granted the Veteran disability benefits effective in April 2006 for a back disorder. The medical records supporting this decision were considered but are silent for any mental health symptoms or examinations. The Board concludes that service connection for PTSD is warranted under the new regulations pertaining to the relaxed requirements for the stressor. The weight of credible medical evidence is that the Veteran has been diagnosed with PTSD related to the events in Vietnam that he reported to VA clinicians and adjudicators. The Board acknowledges that the examiner's observations and analyses that formed the basis for the diagnosis are not rigorous and did not address every element specified in DSM-IV such as avoidance of stimuli, numbness of general responsiveness, social isolation or occupational impairment. However, if a veteran has received a diagnosis of PTSD from a competent medical professional, VA must assume that the diagnosis was made in accordance with the appropriate psychiatric criteria in regard to the adequacy of the symptomatology and the sufficiency of the stressor. Cohen, 10 Vet. App. at 153. VA can only reject such a diagnosis on a finding that the preponderance of the evidence is against (1) the PTSD diagnosis, (2) the occurrence of the in-service stressor, or (3) the connection of the current condition to the in-service stressor. The adequacy of a stressor, sufficiency of symptomatology, and diagnosis are all medical determinations. Id. at 143-44. There are no opinions of record to the contrary. Although the Veteran did not receive any combat related awards, he credibly reported events that are consistent with his unit assignment, location, and duties in the field at a time of widespread, hostile military operations. The traumatic events included fear of personal attack and witnessing the deaths of a Marine, an enemy soldier, and a civilian. The Board concludes that the Veteran's lay testimony of these events is consistent, credible, and sufficient to verify the occurrence of the events. Therefore, as there is a diagnosis of PTSD, credible lay testimony of fear of hostile action and competent, credible, and probative medical opinions of a relationship of PTSD to events in service, the criteria for service connection for PTSD are met. The Board considered whether service connection is also warranted for major depression. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). The weight of competent, credible and probative evidence is that the Veteran has been diagnosed with depression but that clinicians associated the depression with the Veteran's and other family members' illnesses and the Veteran's son's military service. To the extent that the Veteran experienced symptoms of depression associated with events in Vietnam, those symptoms are a component of the diagnosis of PTSD. There is no lay or medical evidence that depression separate from PTSD has been associated with events in the Veteran's military service. Therefore, separate service connection for major depression is not warranted. Bilateral Peripheral Neuropathy of the Lower Extremities In addition to the service connection provisions above, 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) (West 2002 & Supp. 2013); 38 C.F.R. § 3.307(a)(6)(iii) (2013). In the case of such a veteran, 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) (2013). The diseases associated with herbicide exposure for purposes of the presumption include early-onset peripheral neuropathy. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e); see 78 Fed. Reg. 54,763 (Sept. 6, 2013). Effective for claims pending on September 6, 2013, VA replaced the term "acute and subacute peripheral neuropathy" with the term "early-onset peripheral neuropathy." VA also removed Note 2 to § 3.309(e), which had required, in order for the presumption to apply, that the neuropathy be transient, appear within weeks or months of exposure to an herbicide agent, and resolve within two years of the date of onset. Under the amendments, peripheral neuropathy will 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 no longer needs to be transient. Id. Even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As service personnel records show that the Veteran served in Vietnam in 1968-69, he is presumed to have been exposed to the designated herbicide agents. The Veteran does not claim nor do the service records show any direct exposure to the herbicide agents from handling or dispersion of herbicide or movement through recently treated areas. Service treatment records are silent for any symptoms, diagnoses, or treatment of peripheral neuropathy. In a December 2007 claim, the Veteran noted that peripheral neuropathy first manifested in April 1969 and contended that it was caused by exposure to herbicide. The Veteran provided no other statement regarding the nature of the exposure. The Veteran sought VA primary care in May 2001. The Veteran did not report and clinicians did not observe any lower extremity neurological symptoms. In October 2002, a VA clinician diagnosed low back pain and restless leg syndrome. In an April 2003 VA screening examination for diseases associated with herbicide exposure, the Veteran reported back pain but no symptoms of the lower extremities. The neurologic portion of the examination was normal. In November 2004, the Veteran reported uneasy feelings in his legs and the desire to get up at night and walk around. A VA clinician diagnosed restless leg syndrome and prescribed medication. In June 2005, a private neurologist noted the Veteran's report of restless legs at night with tingling, numbness, burning in the right foot, and twitching and jerking of the left side. He diagnosed possible neuropathy or radiculopathy. In July 2005 a needle electrodiagnostic study showed a mild mixed-type sensory neuropathic process and chronic lumbosacral radiculopathy with nerve root irritation. In March 2006, a nerve conduction study was performed and evaluated by private neurologists who diagnosed lumbosacral radiculopathy and peripheral neuropathy. In February 2007, another private neurologist noted the Veteran's reports of low extremity numbness and tingling for several years. Another nerve conduction study showed polysensory and motor neuropathy of the lower extremities. None of the private neurologists indicated an awareness of the Veteran's presumed herbicide exposure. In April 2007, VA clinicians acknowledged the results of the most recent nerve conduction study and diagnosed "unspecified idiopathic peripheral neuropathy." In another VA screening examination for herbicide exposure in May 2007, the examining physician quoted the regulation for presumptive service connection but diagnosed "polysensory and motor peripheral neuropathy, onset 5y ago..." The Veteran continued to receive VA primary care treatment and clinicians continued to note unspecified idiopathic polyneuropathy and lumbar spinal disease with radiculopathy. None of the VA outpatient clinicians noted the Veteran's reports of herbicide exposure or the timing of the onset of symptoms. The Board concludes that service connection for peripheral neuropathy of the lower extremities is not warranted on either a direct or presumptive basis. Lay evidence is competent when a condition can be identified by a layperson. See 38 C.F.R. §§ 3.159(a)(1) and(2) (defining competent medical and lay evidence) and 3.307(b) (as to chronicity and continuity of symptoms lay evidence should describe material and relevant facts observed and not merely conclusions based upon opinion). Lay evidence may, in some circumstances, establish a medical diagnosis, causation or etiology, i.e., when a layperson (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) describes symptoms at the time which supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007). The credibility of lay statements may not be refuted solely by the absence of corroborating medical evidence but this is a factor. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). Other factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). Regarding the onset of the disorder, the Board finds that the great weight of credible evidence is that the disorder first manifested not earlier than 2002 when the Veteran first experienced restlessness in his lower legs. His statement in his claim that the disease first began in April 1969 is not credible. The Veteran is competent to report his observable symptoms, and the Board may not reject lay testimony solely because of the absence of any service treatment or post-service treatment prior to 2002. However, the Veteran made reports to his clinicians that his symptoms started about five years prior to the 2007 herbicide screening examination. Moreover, he never reported his herbicide exposure or this theory of causation to his private or VA treatment providers but only to VA in connection with his compensation claim. Therefore, the Board finds that the Veteran's bilateral peripheral neuropathy of the lower extremities did not manifest to a compensable degree within one year of discharge from active service or his last exposure to herbicide agents, and presumptive service connection based on exposure to herbicide agents is not warranted. See 38 U.S.C.A. §§ 1101, 1112, 1116; 38 C.F.R. §§ 3.303(b) 3.307, 3.309(a), (e). Service connection on a direct basis is also not warranted. The Veteran has been diagnosed with bilateral peripheral neuropathy, but there is no competent and credible evidence that the current disorder was caused by any aspect of service. Although lay persons are 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 falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4. The Board considered whether a VA examination and opinion is required. VA must provide a VA medical examination or opinion 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. VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to and mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In this case, the Board finds that the only evidence to suggest a relationship between the post-service peripheral neuropathy and exposure to herbicide is the Veteran's own unsupported and generalized lay assertion. He has not provided any information on the nature and degree of his exposure, why it should be found to be the cause of his disease, or that any individual or reference authority supports his assertion. Therefore, the Board finds that even the low threshold of an indication of a relationship to service has not been met and that a VA examination and opinion is not necessary. The credible and probative evidence of record is sufficient to decide the claim. The weight of the credible and probative evidence demonstrates that the Veteran's current bilateral peripheral neuropathy of the lower extremities first manifested greater than one year after active service and was not caused or aggravated by any aspect of active service. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.012; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD is granted. Service connection for peripheral neuropathy of the right lower extremity is denied Service connection for peripheral neuropathy of the left lower extremity is denied. ______________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs