Citation Nr: 1433158 Decision Date: 07/24/14 Archive Date: 07/29/14 DOCKET NO. 08-26 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to diabetes and/or lumbosacral spine disability. 2. Entitlement to service connection for peripheral neuropathy of left lower extremity, to include as secondary to diabetes and/or lumbosacral spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from July 1962 to July 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In his August 2008 VA Form 9, the Veteran requested a personal hearing before a Veterans Law Judge, seated at the RO. In a written December 2008 statement, the Veteran's representative withdrew this hearing request. In June 2012, the Board remanded the appeal for further development. The Board has considered documentation included in Virtual VA and VBMS. Virtual VA contains a brief and documents duplicative of those in the paper file. VBMS does not contain any documents. FINDINGS OF FACT 1. The Veteran served in Vietnam and it is presumed that he was exposed to herbicides during service. 2. Peripheral neuropathy of the right lower extremity was not manifest during service or within one year of separation or last herbicide exposure, and is unrelated to service, including to in-service herbicide exposure. 3. Peripheral neuropathy of the right lower extremity is unrelated (causation or aggravation) to the service-connected diabetes and lumbosacral spine disability. 4. Peripheral neuropathy of the left lower extremity was not manifest during service or within one year of separation or last herbicide exposure, and is unrelated to service, including to in-service herbicide exposure. 5. Peripheral neuropathy of the left lower extremity is unrelated (causation or aggravation) to the service-connected diabetes and lumbosacral spine disability. CONCLUSIONS OF LAW 1. Peripheral neuropathy of the right lower extremity was not incurred in or aggravated by service and was not manifested within one year of separation or last herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). 2. Peripheral neuropathy of the right lower extremity is not proximately due to, the result of, or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310 (2013). 3. Peripheral neuropathy of the left lower extremity was not incurred in or aggravated by service and was not manifested within one year of separation or last herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). 4. Peripheral neuropathy of the left lower extremity is not proximately due to, the result of, or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. By correspondence dated in October 2006 and January 2008 VA notified the Veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. He was advised him of how to establish a claim on a secondary basis. He was provided notice of how VA assigns disability ratings and effective dates in a letter of September 2008. The claim was most recently readjudicated in a December 2012 supplemental statement of the case (SSOC). VA has also satisfied its duty to assist. The claims folder contains VA medical records and identified private medical records. VA medical opinions have been obtained. The examinations of record considered the Veteran's history and set forth objective findings necessary for adjudication. The examinations are adequate and further examination is not needed. The Social Security Administration has indicated that no records are available. Further, there has been substantial compliance with the Board's June 2012 remand directives, insofar as the RO afforded the Veteran the opportunity to provide authorization to obtain further private medical records, obtained a VA medical opinion. D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the Board is cognizant of the Veteran's January 2013 argument that records of Dr. J. were not received by VA and he was not notified of this. However, pursuant to the Board's remand, the Veteran was sent a June 2012 letter requesting authorization to enable the RO to obtain records of Dr. J. No response was received. The December 2012 SSOC notified the Veteran of these facts. The December 2012 SSOC also again apprised him that he could submit further evidence, to which no response was received. As the Veteran was provided ample opportunity to provide the necessary authorization, and had actual notice of the fact that VA did not have records of Dr. J., the Board finds no further action regarding the records of Dr. J. is necessary. On review, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159. Laws & Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Service connection may also be granted for a disease first 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). 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, 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; 38 C.F.R. §§ 3.307(a), 3.309(a). Further, pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of a number of conditions, including early onset peripheral neuropathy. See September 6, 2013 amendment to 38 C.F.R. § 3.309(e). The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). In this regard, the Board observes that VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended to certain specific disorders, based upon extensive scientific research. See, e.g., Notices, 68 Fed. Reg. 27,630-41 (2003); 64 Fed. Reg. 59,232-243 (1999); 61 Fed. Reg. 57,586-589 (1996). Most recently, on December 2013, the National Academy of Sciences issued Veterans and Agent Orange: Update 2012 (Update 2012), which stated that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for chronic peripheral nervous system disorders (other than early-onset peripheral neuropathy). However, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). This latter provision was added as part of an amendment intended conform VA regulations to Allen v. Brown, 7 Vet. App. 439 (1995), and also limited the circumstances in which VA would concede aggravation. See 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)). As the new regulation, which took effect on October 10, 2006, after the Veteran filed claim on appeal herein, is more restrictive, the former regulation is applicable. In any event, the Board will find below that there is no aggravation. Analysis The Veteran has current neuropathy of the bilateral lower extremities. See, e.g., July 2012 VA examination report. The Board notes that the provisions of 38 U.S.C.A. § 1154(b) do not apply in this case, as it has not been claimed that the disabilities were incurred while engaging in combat. A review of service treatment records reveals no complaints, treatment, or documentation pertaining to neuropathy of the legs. On separation from service, the Veteran's lower extremities and neurologic systems were normal. He voiced no complaints in this regard. On the issue of nexus, the file contains various VA and private medical opinions, and the Veteran's lay statements. In a September 2004 private medical record, it was noted that there were no complications of the Veteran's diabetes. On VA examination for diabetes in January 2007, the examiner stated there was no evidence of diabetic neuropathy. In October 2008, a private physician diagnosed the Veteran with "peripheral neuropathy most likely due to exposure to Agent Orange." No rationale was included. In December 2008, a private physician submitted a letter stating that the Veteran had peripheral neuropathy of the lower extremities, and that "this can be secondary to his Type II diabetes mellitus, as well as 'Agent Orange' exposure as documented in the patient's chart." On VA examination in July 2012, the Veteran's claims file was reviewed. The Veteran was diagnosed with, "peripheral neuropathy right and left lower extremities of uncertain etiology." On the issue of secondary service connection, the examiner opined that the peripheral neuropathy was less likely as not caused by or a result of diabetes "because a diagnosis of diabetic polyneuropathy in a patient with newly diagnosed diabetes but without other diabetic complications is likely to be incorrect. (Veteran's diagnosis of diabetes was in 2004 without any evidence of nephropathy or retinopathy, at the time of diagnosis of neuropathy of feet.)" The examiner further opined that the peripheral neuropathy was less likely as not caused by or a result of lumbosacral spine disability "because objective findings of symmetric sensory motor deficits in this Veteran not [sic] consistent with lumbosacral radiculopathy." On the issue of herbicide exposure, the examiner opined that the peripheral neuropathy was less likely as not caused by or a result of exposure to Agent Orange. The examiner found that there was no manifestation of peripheral neuropathy within one year of the Veteran's last exposure, and noted that the condition did not arise for 33 years thereafter. The Board finds the VA examination report of July 2012 to be adequate for the purposes of adjudication. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The examiner based her opinions on an examination of the claims file and the Veteran's diagnostic reports. She reviewed the Veteran's reported history and symptoms in rendering the opinions, as well as the service treatment records. She provided rationales for the conclusions reached. While the examiner did not specifically address the issue of whether the Veteran's peripheral neuropathy was aggravated by his service-connected disabilities, the examiner did extensively review the claims folder, including diagnostic reports and the Veteran's medical history, and diagnosed him with peripheral neuropathy of the bilateral lower extremities, indicating that the cause is unknown. The context of her statement, indicating that there was no relationship between the peripheral neuropathy and diabetes or lumbosacral spine disability, reflects the belief that the peripheral neuropathy was not aggravated by the service-connected disabilities. Cf. El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (considering the possibility that language in a medical opinion could be considered to address aggravation without specifically using that word, but rejecting the argument on the facts of that case); see also 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's conclusion in this regard is also supported by the case of Kittrell v. Shinseki, No. 08-3001, 2010 WL 4671873 (Vet. App. Nov. 10, 2010) (mem. dec., Moorman, J.), in which the Court addressed the argument that a medical opinion was inadequate because it was not stated in the precise terms found in 38 C.F.R. § 3.310. The Court rejected this argument, and held, "It is not required that a medical opinion regarding secondary service connection be stated in the precise terms found in § 3.310 to be considered adequate. To the contrary, this Court has emphasized that a physician's choice of language is not error where, as here, his opinion is unambiguous and sufficient to comply substantially with the purpose for which it was sought." Id. at *2 (citing Dyment v. West, 13 Vet.App. 141, 146-47(1999)). The Court also held that the Board's decision relying on this opinion was not rendered inadequate "simply because the examiner did not use the 'magic words' of proximate causation." Id. The Court's decision was affirmed by the Federal Circuit and the Board finds its reasoning persuasive. See Kittrell v. Shinseki, No. 2011-7102, 464 Fed. Appx. 902, 2012 WL 884871 (Fed. Cir. Feb 17, 2012) (unpublished order). See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Consequently, the Board finds that the lack of specific reference to aggravation did not render the July 2012 VA examiner's opinion inadequate. By contrast, the positive opinions of the October 2008 and December 2008 private physicians are of lesser probative value because they do not contain a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding most of the probative value of a medical opinion comes from its reasoning.) Also, as noted by the Board in June 2012, the December 2008 physician's use of the word "can" suggests speculation, which may not serve as the basis of grant of service connection. See Obert v. Brown, 5 Vet. App. 30, 33 1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The only other evidence to the contrary of the VA examination report is the lay evidence. Here, the Board finds that the Veteran's lay assertions are competent. Lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Further, the Board finds that the lay statements regarding an association between the Veteran's peripheral neuropathy and service and/or his service-connected disabilities are credible. Consequently, the Board will weigh the lay statements against the medical evidence. The VA examiner in this case was a medical professional who reviewed the claims file and considered the reported history including the Veteran's own lay assertions. The examiner, in providing the requested medical opinions, used her expertise in reviewing the facts of this case and determined that the current peripheral neuropathy was not related to service, including to Agent Orange exposure, or the service-connected diabetes or lumbar spine disability. The etiology was unknown. As the examiner explained the reasons for her conclusions based on an accurate characterization of the evidence, including the Veteran's lay statements, the opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In weighing the VA examiner's opinions against those of the Veteran, the Board finds that the credibility and probative value of the specific and reasoned statement of the trained medical professionals outweighs that of the general lay assertions. For these reasons, the Board finds that the current peripheral neuropathy of the lower extremities is not due to disease or injury that was incurred in or aggravated by active service, including herbicide exposure, and is unrelated to the service-connected disabilities. The Board additionally notes that while chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty, the record here does not document peripheral neuropathy of the lower extremities within one year of the Veteran's July 1985 discharge. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Indeed, a VA examination report of September 1985, for example, was negative in this regard. Accordingly, such presumptive service connection is not warranted. To the extent the Veteran asserts having a continuity of symptomatology between the present conditions and in-service injury or disease, peripheral neuropathy was not noted during service. Furthermore, characteristic manifestations of the disease process were not identified during service. Accordingly, § 3.303(b) is not applicable. See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). Finally, presumptive service connection based on herbicide exposure is not warranted as there is no indication of early-onset peripheral neuropathy manifested to a degree of 10 percent or more within a year after the Veteran's last herbicide exposure. Again, his peripheral neuropathy did not manifest for many years after service. Chronic peripheral nervous system disorders have been specifically excluded from presumptive service connection based on herbicide exposure. In reaching this decision, the Board notes that, as the preponderance of the evidence is against the Veteran's claims, the doctrine of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for peripheral neuropathy of the right lower extremity is denied. Service connection for peripheral neuropathy of the left lower extremity is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs