Citation Nr: 1400267 Decision Date: 01/06/14 Archive Date: 01/23/14 DOCKET NO. 08-16 619A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for a bilateral lower extremity disorder manifested by fatigue/numbness, to include as due to herbicide exposure. ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to May 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The Board remanded the case for further development in January 2012. That development was completed, and the case has since been returned to the Board for appellate review. A review of the Virtual VA and VBMS electronic claims files does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during a period in which exposure to herbicides is presumed. 2. A bilateral lower extremity disorder manifested by fatigue/numbness did not manifest in service, within one year of the Veteran's last date of exposure to herbicide agents, or within one year of separation, and is not otherwise related to service. CONCLUSION OF LAW A bilateral lower extremity disorder manifested by fatigue/numbness was not incurred in service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO provided the Veteran with a notification letter in September 2007, prior to the initial decision on the claim in December 2007. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. In the September 2007 letter, the RO notified the Veteran of the evidence necessary to substantiate the claim for service connection and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein. The record also includes written statements provided by the Veteran. The Veteran was afforded a VA examination in February 2012 in connection with his claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination and medical opinion are adequate to decide the case, as they were predicated on a review of the claims file, as well as on an examination during which a history was solicited from the Veteran. The examiner considered the pertinent evidence of record, to include the statements of the appellant, and provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has further assisted the Veteran throughout the course of this appeal by providing him with a statement of the case (SOC) and supplemental SOCs, which informed him of the laws and regulations relevant to the claim. The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis As an initial matter, the Board notes that record does not reflect, and the Veteran does not contend that he engaged in combat with the enemy. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not applicable in this case. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As organic diseases of the nervous system (such as peripheral neuropathy) are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system (peripheral neuropathy), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed during such service to Agent Orange, 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); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.307(d). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), to include early-onset peripheral neuropathy if manifested to a compensable degree within one year of the last date the veteran was exposed to an herbicide agent during active service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii); see also Final Rule, Diseases Associated With Exposure to Certain Herbicide Agents: Peripheral Neuropathy, 78 Fed. Reg. 54763-54766 (2013) (effective Sept. 6, 2013). The Board notes that the changes to this regulation regarding peripheral neuropathy, which took effect during the pendency of the Veteran's claim, do not have a bearing on the outcome in this case. 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. See 78 Fed. Reg. 54763-54766 (2013) (effective Sept. 6, 2013). As will be discussed below, the evidence does not show, and the Veteran does not contend, that he developed peripheral neuropathy within one year of his herbicide exposure. Instead, both he and the evidence suggest that his claimed disorder began around 2001, which would have been approximately 30 years after his military service. In addition, VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam is not appropriate for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600, 42608 (June 24, 2002). Based on the National Academy of Sciences (NAS) Veterans and Agent Orange: Update 2010 and prior NAS reports, VA has specifically determined that service connection on this presumptive basis is not warranted for chronic peripheral nervous system disorders (other than early-onset peripheral neuropathy). See Notice, 77 Fed. Reg. 47924, 47927 (Aug. 10, 2012). When a claimed disability is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 Fed.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997) (applying principle to Agent Orange exposure). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection is not warranted for a bilateral lower extremity disorder manifested by fatigue/numbness, to include as due to herbicide exposure. A review of the Veteran's DD-214 shows that he served in Vietnam during the course of his active duty from December 1970 and May 1971. Therefore, he is presumed to have been exposed to Agent Orange in Vietnam during that timeframe. The Veteran's service treatment records show no complaints, treatment, or diagnosis of peripheral neuropathy or another lower extremity disorder, or indicative symptoms. During an April 1971 separation examination, all of the Veteran's relevant body systems were indicated to be "normal," including the lower extremities, vascular system, neurologic system, and feet. Thus, the medical evidence does not suggest that a bilateral lower extremity disorder manifested in service. In addition, the Veteran is keenly aware that his symptoms did not begin in service or until many years thereafter, and he has not argued that his symptoms have been continuous since service. See, e.g., September 2007 claim (reported lower extremity disability began in August 2001); October 2007 written statement (reported conditions not present during service). A review of the post-service medical evidence also shows that the Veteran routinely reported that his bilateral lower extremity symptoms first manifested around the summer of 2001, with multiple medical evaluations provided thereafter. See, e.g., private treatment records from Drs. J.L. (June 2003) and J.I. (September 2003) (initials used to protect privacy). Therefore, the Board concludes that a bilateral lower extremity disorder did not manifest in service, within one year of the Veteran's last date of exposure to herbicide agents, or for many years thereafter, to the extent the presumptive provisions outlined above are applicable to the Veteran's currently diagnosed lower extremity disorder, as discussed below. Rather, the Veteran contends that his current bilateral lower extremity disorder is a result of his exposure to herbicides during service. Specifically, he argues that the effects of Agent Orange on his body took time to show, but that his current problems, such as fatigue, weakness, and numbness in his legs and feet, are nevertheless due to this herbicide exposure. He has indicated that various doctors have been unable to provide a definitive cause for his current disorder. See, e.g., October 2007 written statement; January 2008 notice of disagreement; June 2008 substantive appeal (VA Form 9); February 2012 VA examination report. The post-service evidence shows that the Veteran's current bilateral lower extremity disorder has been attributed to multiple possible etiologies, to include his nonservice-connected spine disorders. Historically, as noted, the Veteran complained of bilateral lower extremity symptoms with onset around the summer of 2001. The record also reflects an onset of back pain at that time. See December 2002 private treatment record (Dr. S.S.). Upon referral to a specialist, Dr. J.T. noted that the Veteran's symptoms were consistent with neurogenic claudication secondary to lumbar spine stenosis or lateral recess stenosis. In June 2002, the Veteran underwent L4-5 surgical decompression. Following the surgery, he experienced recurrence of symptoms and underwent various diagnostic testing thereafter. See May-September 2002 private treatment records (Dr. J.T.). A November 2003 private treatment record from Dr. J.I. shows that the Veteran's leg fatigue and weakness was suspected to be multifactorial with contributions from degenerative spine disease, vitamin B12 deficiency, and a minor component of left meralgia paresthetica. At that time, it was noted that the Veteran reiterated his suspicion that at least some of his problems were related to his low back degenerative disease, as his legs began to bother him the most when he was driving long distances and his back began to hurt. In a March 2004 private treatment record, Dr. R.C. indicated that the Veteran may have restless leg syndrome, but his history of spinal stenosis, back pain, and surgery confused the diagnosis. The Veteran established care with VA in 2004. VA treatment records show varying working assessments of the Veteran's bilateral lower extremity disorder. For example, a May 2004 VA treatment record shows that the Veteran had symptoms of sensory peripheral neuropathy in his feet and poor post-surgical pain relief for lumbar stenosis. A November 2005 VA treatment record shows that recent test results were more consistent with demyelinating neuropathy than spinal stenosis; however, a September 2007 VA treatment record shows that, clinically, there was no evidence of a continuing neuropathy, and symptoms were compatible with pseudoclaudication. An October 2007 follow-up assessment notes an abnormal MRI of the cervical spine with stenosis. In addition, the assessments of the VA neurologist following the Veteran in the most recent VA treatment records beginning in 2008 indicate that the Veteran's symptoms were likely associated with spine disorders. See, e.g., November 2008 VA treatment record (noting nervous system imaged and changes observed in the thoracic cord likely responsible for Veteran's symptoms). In a September 2011 VA treatment record, the neurologist noted that the Veteran re-established neurology care after a hiatus. She noted a history of a normal EMG, as well as MRIs of the cervical spine and thoracic spine showing possible causes of the Veteran's symptoms; there was question of demyelination of the thoracic spine and cord compromise of the cervical spine. The assessment was that the leg symptoms present since 2002 may well be due to the changes seen in the thoracic cord. In accordance with the Board's January 2012 remand, the Veteran was afforded a VA examination in February 2012 during which he reported a long history of pain, fatigue, weakness, numbness, and tingling in both legs and feet starting in approximately 2002, with symptoms worse with weightbearing or walking through snow. The examiner noted that the Veteran was evaluated by multiple specialists and that extensive evaluation revealed cord compression of the cervical spine. There was also extensive disease in the lumbar spine due to degenerative joint disease with foramina narrowing and a history of L-4 surgery for repair of spinal stenosis. Following examination, the diagnosis was spinal stenosis with myelopathy - bilateral lower extremities. The examiner determined that it was less likely as not that the Veteran's diagnosis was related to, caused by, or aggravated by his Agent Orange exposure. In so finding, the examiner noted that the Veteran had a long history of documented cervical and lumbar spinal stenosis with cord compression and that this was responsible for all symptoms experienced in the Veteran's lower extremities. The examiner observed that the Veteran had undergone extensive testing, which revealed degenerative disease in his cervical and lumbar spine. Further, the examiner indicated that surgery to correct the Veteran's lumbar spine stenosis with bilateral leg symptoms did not relieve all symptoms because there was some cervical spine compression as well. Finally, the examiner noted that the diagnosed disorder was not on the list of diseases recognized as presumptive based on Agent Orange exposure. Parenthetically, the Board notes that the January 2012 remand directives instructed the VA examiner to consider whether any identified lower extremity disorder was related to the Veteran's nonservice-connected diabetes mellitus, type II. The Board finds that the VA examiner adequately addressed this issue in his opinion, inasmuch as he provided one diagnosis for the lower extremities, associated with the spine, and determined that this disorder accounted for all symptoms. In addition to the lack of evidence showing that a bilateral lower extremity disorder manifested during service or within close proximity thereto, the weight of the evidence of record does not link any current disorder to the Veteran's military service. Notably, while the private and VA treatment records show multiple possible etiologies and working assessments for the Veteran's current bilateral lower extremity disorder and symptoms, the record, as discussed above, does not show or otherwise suggest a connection to his active service, to include herbicide exposure, on either a direct or presumptive basis. Moreover, the record does not reflect, nor does the Veteran contend, that his bilateral lower extremity disorder is related to any other injury, disease, or event in service. The one medical opinion on the question of whether the Veteran's current bilateral lower extremity disorder is related to service is from the February 2012 VA examiner, which weighs against the claim. The examiner determined that the Veteran's current spinal stenosis with myelopathy - bilateral lower extremities was due to his long-standing spinal problems. The VA examiner provided detailed reasons for the opinion based on the examination findings with the Veteran's reports and a review of the claims file, which reflects an accurate characterization of the evidence of record. The Board notes that the examiner's rationale is arguably not exhaustive, inasmuch as he did not specifically address the thoracic spine findings in the VA treatment records as discussed above. However, he did perform a thorough review of the evidence in the claims file, including the Veteran's VA and private treatment records not showing or suggesting a nexus between the current bilateral lower extremity disorder/symptoms and service and some showing a likely relationship between the Veteran's spine issues and his lower extremity symptoms. Thus, when viewed in that context, the February 2012 VA examiner's opinion is entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The Board has also considered the Veteran's lay statements of record, to include his contention that his current disorder is related to his in-service herbicide exposure. The Veteran is certainly competent to report as to the observable symptoms he experiences, such as the onset of his bilateral lower extremity symptoms and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, competence must be distinguished from probative weight. In this case, the question of whether Agent Orange exposure could cause a bilateral lower extremity disorder many years after service is a complex medical matter as to an internal medical process that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-09 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). To the extent that the Veteran is competent to opine on this matter, the Board finds that the specific, reasoned opinion of the VA examiner is of greater probative weight than his more general lay assertions in this regard. The examiner has training, knowledge, and expertise on which he relied to form his opinion, and he provided a rationale for it. Based on the foregoing, the Board finds that the weight of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53. ORDER Entitlement to service connection for a bilateral lower extremity disorder manifested by fatigue/numbness, to include as due to herbicide exposure, is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs