Citation Nr: 1504543 Decision Date: 01/30/15 Archive Date: 02/09/15 DOCKET NO. 12-23 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a chronic low back disability, including neurological disability affecting the lower extremities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant (Veteran) and his sister ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from May 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board has reviewed the Veteran's physical claims file, as well as the electronic files on the "Virtual VA" system and the Veterans Benefits Management System (VBMS), to ensure a complete review of the evidence in this case. In December 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran engaged in combat with the enemy during service. 2. The Veteran has qualifying service in the Republic of Vietnam for which herbicide exposure during service is presumed. 3. There was no back or neurological injury or symptoms or disease of the back or neurological system during service, and chronic symptoms of peripheral neuropathy of the lower extremities were not manifested during service. 4. Symptoms of peripheral neuropathy of the lower extremities were not continuous since separation from service, and were not manifested to a compensable degree within one year of service. 5. Delayed onset chronic peripheral neuropathy is not a disease presumed to be associated with herbicide exposure. 6. The current low back disability, including peripheral neuropathy of the lower extremities, was first manifested in 2009 and is not causally or etiologically related to active service, to include any incident or event therein such as herbicide exposure. 7. The current low back disability was not caused or permanently worsened beyond the normal progression by the service-connected residuals of a laceration of the left thigh, Muscle Group XIV. CONCLUSION OF LAW The criteria for service connection for a chronic low back disability, including peripheral neuropathy of the lower extremities, are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1137, 1154(b), 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). 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, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In the April 2011 notice letter sent prior to the initial denial of the claim, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits, and described the types of information and evidence that the Veteran needed to submit to substantiate the claim. The RO explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The RO informed the Veteran how VA determines the disability rating and effective date once service connection is established. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claim, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. The complete service treatment records are included in the record, and post-service treatment records identified as relevant to the appeal have been obtained or otherwise submitted. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. At the December 2013 Board hearing, the undersigned VLJ identified the issue on appeal, including specific theories of service connection for the issues (direct, herbicide exposure, secondary), and elicited testimony as to when symptoms and treatment of the disability began. The Veteran admitted that medical professionals had not been able to determine the cause of the chronic low back disability. The VLJ explained that exposure to herbicide agents during service was presumed, and there was adequate information regarding the nature of the current disability; however, the missing element needed to establish service connection was the link (nexus) to service. The VLJ advised the Veteran that a medical opinion linking the current back disability to service was needed in support of the appeal, and recommended that he obtain such medical opinions from his treating medical providers. Also, after considering the Veteran's hearing testimony, the Board obtained a VHA medical expert opinion from a neurologist. In consideration thereof, the Board finds that the duties under 38 C.F.R. § 3.103(c)(2) were satisfied. Because the nature of the Veteran's chronic low back disability was well documented in the record, no VA medical examination was provided to the Veteran. Rather, a VHA medical expert opinion was obtained from a VA neurologist. The reviewing VA neurologist provided a medical opinion based on an accurate medical history as documented in the record, consideration of the Veteran's current complaints and treatment, and the findings shown in treatment records. The October 2014 supplemental VHA medical expert opinion adequately clarified the prior July 2014 medical opinion on the etiology of the Veteran's chronic low back disability and addressed the likely etiology of the low back disability when there was no back injury or disease or chronic symptoms of a neurological disability demonstrated until many years after service and virtually no outstanding physical issues from the laceration residuals. In consideration thereof, the Board finds that the reviewing VA neurologist had adequate facts and data regarding the history and current severity of the Veteran's low back disability when rendering the medical opinion. The reviewing VA neurologist provided adequate rationale in support of the medical opinion. For these reasons, the Board finds that the VA medical opinions are adequate, and no VA medical examination or further medical opinion is needed. Neither the Veteran nor the representative has made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is currently diagnosed with peripheral neuropathy, thoracic myelopathy, and paraplegia. Peripheral neuropathy, as an organic disease of the nervous system, is a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable to that diagnosis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Myelopathy (any of various functional disturbances or pathological changes in the spinal cord, often referring to nonspecific lesions in contrast to the inflammatory lesions of myelitis) and paraplegia (paralysis of the lower limbs and lower trunk) are not "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable to those diagnoses. Walker, 708 F.3d at 1331; see also Dorland's Illustrated Medical Dictionary 1211, 1368 (30th ed. 2003). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as an organic disease of the nervous system (i.e., peripheral neuropathy of the lower extremities), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, a veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (or was otherwise exposed to an herbicide agent during active service); (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the certain diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. The list of diseases associated with exposure to certain herbicide agents does not include any of the disabilities for which the Veteran seeks service connection. See 38 C.F.R. § 3.309(e). A combat veteran is entitled to have his statements as to injuries he sustained in a combat setting accepted, under 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2014). That law does not by itself, however, establish a basis for the grant of service-connected disability benefits. The claimant is still required to meet other evidentiary burdens as to service connection, such as whether there is a current disability and whether there is a link between service and the currently claimed disability, both of which require competent evidence. See Wade v. West, 11 Vet. App. 302 (1998) (holding that evidence of a causal nexus between an in-service event and a current disability is still required even when a veteran is shown to have participated in combat); Collette v. Brown, 82 F.3d 389, 392 (1996). In this case, the Veteran is in receipt of the Combat Action Ribbon, which denotes combat service, and is entitled to the presumption afforded combat veterans under 38 U.S.C.A. § 1154(b) (West 2014) and 38 C.F.R. § 3.304(d) (2014); however, the current chronic low back disability, including peripheral neuropathy, myelopathy, and paraplegia, are disease entities and are not the result of combat injury or the types of diseases that are consistent with the conditions, hardships, or circumstances of combat service. For these reasons, the presumption afforded combat veterans under 38 U.S.C.A. § 1154(b) is not of benefit to the Veteran with respect to the appeal. Service connection may also be granted for disability which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310(a). "When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet. App. 439 (1995). Service Connection Analysis for Chronic Low Back Disability The Veteran contends that the current chronic low back disability, diagnosed as thoracic myelopathy, peripheral neuropathy affecting the bilateral lower extremities, and paraplegia, is due to herbicide exposure during service. Because the Veteran has qualifying service in the Republic of Vietnam, exposure to herbicide agents during service is presumed in this case. In the alternative, the Veteran asserts that the current peripheral neuropathy was caused or aggravated by the service-connected residuals of a laceration of the left thigh, Muscle Group XIV. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding of back or neurologic injury, disease, or symptoms during service, chronic symptoms of peripheral neuropathy during service, or continuous symptoms of peripheral neuropathy since service, including to a compensable degree within one year of service separation. During service, there was no complaint of, finding of, or treatment for, any back or neurologic injury, disease, or symptoms, including chronic symptoms of peripheral neuropathy involving the lower extremities, and the spine and lower extremities and the neurologic system were clinically evaluated as normal at the November 1970 service separation examination. The Veteran does not contend otherwise. See, e.g., April 2011 VA Form 21-4138 (stating that he never injured the back); May 2012 Notice of Disagreement (noting that he had been active and employable for much of his life, had only experienced physical deterioration during the last three years, and believed that the only incident that could bring about the deterioration was the time in Vietnam and chemicals to which he was exposed during service in Vietnam). The weight of the evidence demonstrates that symptoms of the chronic low back disability, including symptoms of peripheral neuropathy of the lower extremities, were manifested many years after service separation. The Veteran has consistently reported that symptoms of the chronic low back disability had their onset in 2009, approximately 39 years after service. See, e.g., June 2013 VA hospital discharge summary (noting the Veteran's report that he first started noticing symptoms of gradual weakness of the lower extremities with increased difficulty walking and numbness and tingling beginning in 2009). The reported onset of symptoms of the chronic low back disability is consistent with other evidence of record, and is deemed credible. The thirty-nine year period between service and onset of symptoms of the chronic low back disability, to include peripheral neuropathy of the lower extremities, is a factor that weighs against a finding of service incurrence. Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). The weight of the evidence is against a finding that the current chronic low back disability, which was first manifested nearly four decades after service separation, is otherwise causally or etiologically related to service, to include presumed herbicide exposure during service. While a form of peripheral neuropathy (i.e., early onset) is included as an enumerated disease associated with herbicide exposure under VA regulatory criteria, presumptive service connection under 38 C.F.R. § 3.309(e) is warranted only when the peripheral neuropathy was manifested to a degree of 10 percent or more within one year after the date of last herbicide exposure. In this case, because the Veteran's chronic peripheral neuropathy was initially manifested 39 years after herbicide exposure in service, he does not have the type of peripheral neuropathy entitled to presumptive service connection under 38 C.F.R. § 3.309(e). Delayed onset chronic peripheral neuropathy, which is the form of peripheral neuropathy presented in this case, by regulation, is not a disease for which service connection may be presumed as being the result of herbicide exposure. The scientific studies reviewed as part of that regulatory process established no correlation between herbicide exposure and delayed onset chronic peripheral neuropathy that developed many years after termination of exposure in those who did not originally experience early-onset neuropathy. Chronic peripheral nervous system disorders (other than early-onset peripheral neuropathy) were specifically excluded by regulation as a disease associated with herbicide exposure. See 79 Fed. Reg. 20,308; see also Institute of Medicine, Veterans and Agent Orange: Update 2012 (Update 2012). There is no competent evidence of record that has demonstrated a relationship between the Veteran's delayed onset chronic peripheral neuropathy, and active military service, to include presumed exposure to herbicide agents during service. After reviewing the record, the reviewing VA neurologist opined that it was not as likely as not that the current chronic back disability was causally or etiologically related to the presumed herbicide exposure during service or to the Veteran's military duties as a machine gunner during service. In providing rationale for the medical opinion, the reviewing VA neurologist explained that a May 2011 neurosurgical record noted the Veteran's thoracic abnormalities and clarified the dual problems of polyneuropathy and myelopathy. The reviewing VA neurologist then opined that the neurological disabilities affecting the lower extremities were definitely not causally or etiologically related to presumed herbicide exposure during service and that the paraplegia, which was supported by the information found in the May 2011 neurosurgical note, was more likely due to the myelopathy and was, therefore, unrelated to herbicide exposure. The reviewing VA neurologist further reasoned that, given that the Veteran did not report a specific back injury during service, the thoracic abnormalities and neurological disability affecting the lower extremities, myelopathy, and paraplegia were not related to service. The reviewing VA neurologist identified a likely etiology of the disorders. The VA neurologist concluded that, while the etiology of many cases of polyneuropathy cannot be determined or are unknown, in this case, the only reasonable etiology documented in the record was excess alcohol. In support of the medical opinion, the reviewing VA neurologist specifically cited a March 2011 VA inpatient progress note referencing the Veteran's claim to have stopped drinking and the persistent macrocytosis which indicated otherwise. See October 2014 VHA medical expert opinion. The weight of the evidence is also against a finding that the service-connected laceration to the left thigh, Muscle Group XIV, either caused or aggravated the chronic low back disability. Service treatment records document treatment for a laceration of the left thigh after falling on glass in 1970; however, there is no indication of back or nerve involvement related to the injury. Additionally, after reviewing the record, the reviewing VA neurologist opined that it was not as likely as not that the service-connected residuals of the laceration of the left thigh to Muscle Group XIV either caused or permanently worsened beyond the normal progression any lower back disability, including any neurological disability affecting the lower extremities, because there was no evidence found in the records reviewed to support any cause and effect relationship between the laceration residuals and the low back disability and the lack of information in reviewed records about the laceration residuals was highly suggestive of the absence of outstanding physical issues related thereto. See July 2014 VHA medical expert opinion. Because the reviewing VA neurologist has expertise in the area of neurological disability, had sufficient facts and data on which to base the medical opinions, and provided adequate rationale for the medical opinions, the VA medical opinions are of significant probative value, and outweighs the general medical treatise evidence. There is no competent medical opinion to the contrary of record. The medical treatise evidence submitted by the Veteran discusses symptoms of chronic inflammatory polyneuropathy, lists several conditions that may occur with polyneuropathy, and reads that, in many cases, the cause cannot be identified. The medical article does not tend to link the current chronic low back disability to service or to a service-connected disability, including the service-connected residuals of the laceration of the left thigh to Muscle Group XIV. Although the Veteran has asserted that presumed herbicide exposure during active service caused the peripheral neuropathy or was caused or aggravated by the service-connected residuals of a laceration to the left thigh, Muscle Group XIV, he is a lay person and does not have the requisite medical expertise to diagnose peripheral neuropathy or render a competent medical opinion regarding the relationship between the current peripheral neuropathy, which began many years after service, and active service, including presumed herbicide exposure or to a service-connected disability. Such opinions as to causation involve making findings based on medical knowledge and clinical testing results, and the neurological system is complex and often involves unseen systems processes and disease processes that are not observable by the five senses of a lay person. Consequently, the Veteran's purported opinion relating the current peripheral neuropathy to active service or to the service-connected residuals of a laceration to the left thigh, Muscle Group XIV is of no probative value. In consideration thereof, the Board finds that the preponderance of the evidence is against the appeal, and service connection for a chronic low back disorder, diagnosed as peripheral neuropathy, must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a chronic low back disability, including neurological disability affecting the lower extremities, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs