Citation Nr: 1504638 Decision Date: 01/30/15 Archive Date: 02/09/15 DOCKET NO. 11-16 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the hands and feet. 2. Entitlement to service connection for left knee disability. 3. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Andrew Wener, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and daughter ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from October 1970 to October 1972, with Vietnam service from August 1971 to September 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran and his daughter presented testimony at a Board hearing in November 2014, and a transcript of the hearing is associated with his claims folder. The issue of service connection for an acquired psychiatric disorder, including PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have a current peripheral neuropathy disability of his hands or feet and none was manifested within one year after the date of his last exposure to herbicides. 2. The Veteran's current left knee disability was not manifest in service or for many years after service and is unrelated to any incident of service. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the hands and feet are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). 2. The criteria for service connection for left knee disability are not met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Adequate notice was provided in July 2009. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; and afforded the Veteran the opportunity to give testimony before the Board. A VA examination is not necessary for the peripheral neuropathy claim as the evidence does not contain competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability and does not establish that the Veteran suffered a relevant event, injury, or disease in service or has a disease manifesting during an applicable presumptive period, and also because there is also no indication that any current peripheral neuropathy may be associated with an established event, injury, or disease in service. A VA examination is not necessary for the left knee disability claim as the evidence does not indicate that the Veteran's current left knee disability may be associated with an established event, injury, or disease in service. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims record; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Arthritis and organic disease of the nervous system are listed as chronic diseases. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. 38 C.F.R. § 3.303(b). VA regulations provide that certain disorders, including early-onset peripheral neuropathy, associated with in-service herbicide agent exposure, may be presumed service connected. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Veterans diagnosed with an enumerated disease who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307. For a disease not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Effective September 6, 2013, the provisions of 38 C.F.R. § 3.309 were revised to replace the term "acute and subacute" peripheral neuropathy with "early-onset" peripheral neuropathy and by removing the note stating that the term "acute and subacute peripheral neuropathy" meant transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. See 78 Fed. Reg. 54,763 (Sept. 6, 2013). It was further noted that the amendment clarifies that VA will not deny presumptive service connection for early-onset peripheral neuropathy solely because the condition persisted for more than two years after the date of the last herbicide exposure. However, it was noted that it does not change the requirement that peripheral neuropathy must have become manifest to a degree of ten percent or more within one year after a Veteran's last in-service exposure in order to qualify for the presumption of service connection. A September 29, 2010, National Academy of Sciences report, Veterans and Agent Orange: Update 2010, was noted to have found that evidence did not support an association between herbicide exposure and delayed-onset peripheral neuropathy, which was defined as having its onset more than one year after exposure. The Veteran's service medical records are unavailable despite exhaustive attempts to obtain them from the National Personnel Records Center. Copies of the Veteran's service personnel records are of record. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The following analysis has been undertaken with this heightened duty in mind. Peripheral neuropathy When the Veteran was seen by VA for headaches over his temple in November 1979, he was neurologically evaluated and it was reported that his upper and lower extremity deep tendon reflexes were normal, that his sensory system was intact to pinprick and touch, and that his coordination, gait, and stations as tested were normal. On VA evaluation in January 1991, the Veteran reported right arm numbness and tingling for about a month. The impression was of a soft tissue injury to the right upper extremity. On VA neurology evaluation in September 1992, the Veteran reported pelvic numbness radiating to both knees, with an onset in 1972. He denied other symptoms and diabetes mellitus. On evaluation, he had full strength and coordination in all 4 extremities. Reflexes were brisk and symmetrical, including at the ankles. Sensory was intact to temperature, vibration, pinprick, and proprioception including in the pelvis, buttocks, and groin. Abdominal cremasteric reflexes were intact. The impression was subjective pelvic numbness with a totally normal neurological examination. On VA examination in October 1993, the Veteran denied sensory changes and his reflexes, peripheral nerves, and sensory were normal. On thorough neurology consultation in August 2008, for complaints of migraine with syncope, sensory examination was normal in the upper and lower extremities bilaterally; no neuropathy was diagnosed. After the Veteran submitted a claim of service connection for peripheral neuropathy in July 2009, he was asked to indicate when it began and when he was treated, but he did not do so. On VA neurology consultation in July 2009, after the Veteran reported falling several times, cranial nerves II-XII were intact, deep tendon reflexes were 2+ bilaterally, and there was no focal motor deficit. The Veteran moved all limbs equally. He had decreased pinprick on the right side, strong grips bilaterally, plantars downgoing, and an increased deep tendon reflex on the left side. Peripheral neuropathy was not diagnosed. On VA evaluation in February 2010, the Veteran responded to touch and pain and his grips were equal left and right in his upper and lower extremities. The next day, cranial nerves II-XII were grossly intact. The record contains no medical evidence showing a current diagnosis of peripheral neuropathy. The Veteran testified in November 2014 that he has had numbness or tingling in his hands and feet since within about a year after his service discharge in 1972. Based on the evidence, the Board finds that service connection is not warranted for peripheral neuropathy of the hands and/or feet, either directly due to service or presumptively under the 1-year presumptive service connection rule or under the Agent Orange presumptive service connection rule. There is no current diagnosis of it and while the Veteran had complained of numbness radiating to both knees in September 1992 and has recently testified as to numbness and tingling in his hands and feet since about a year after service discharge, thorough neurological evaluations were normal in November 1979 and September 1992. Even if we were to assume the Veteran has peripheral neuropathy, as reflected by the findings of decreased pinprick on the Veteran's face and extremities on VA evaluations in March and June 2010, the preponderance of the evidence indicates that it was not manifest in service or to a degree of 10 percent within one year of separation or last presumed exposure to Agent Orange and that it is unrelated to service. It was not shown as of the September 1992 evaluation and no competent evidence of record relates it to any incident of service. The Veteran's testimony has been considered. As to the existence of symptoms since about 1992, the preponderance of the evidence is against this. The Veteran filed claims for other problems in February 1996 without claiming service connection for peripheral neuropathy. This is an indication that it was not present within a year following service discharge or the last presumed Agent Orange exposure. It outweighs the evidence to the contrary. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the diagnosis of peripheral neuropathy is complex and requires medical expertise and thus, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). In the absence of a currently diagnosed disability, service connection cannot be established. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Left knee On VA evaluation in November 1979, the Veteran's extremities were freely moveable. On VA Agent Orange protocol examination in July 1992, his extremities were normal. On VA evaluation in January 1995, the Veteran had a full range of motion of his extremities. On VA evaluations in October 1995, the Veteran reported that he had been robbed recently and struck with a baseball bat and his knee swelled up. An X-ray was normal but he had knee effusion, and in December 1995, after continued difficulties with the knee, an MRI was obtained, showing a subchondral fracture with disrupted cartilage involving articular surface of the posterior left femoral condyle. Further investigation revealed avascular necrosis and the Veteran had a total knee arthroplasty in February 1996 to take care of the problem. When the Veteran filed a claim for VA pension in February 1996, he indicated that left knee problems began in October 1995. He did not claim service connection for left knee disability. When the Veteran claimed service connection for left knee disability in July 2009, he was asked to indicate when it began and when he was treated, but he did not do so. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current post-operative left knee disability. The preponderance of the evidence demonstrates that the current left knee disability was caused by trauma sustained in 1995, when the Veteran was assaulted in the knee with a baseball bat and avascular necrosis took place following a subchondral fracture with disrupted cartilage. The current left knee disability was not manifest in service or until years after service and is unrelated to service. While the Veteran testified in November 2014 that he hurt his knee in service while running to a bunker, and saw a doctor for it, the evidence shows that the Veteran's left knee was normal post-service until he developed avascular necrosis due to trauma in 1995. Even if there was an in-service injury, it could not have caused the current left knee disability, which the evidence clearly shows was due to an assault in 1995. The Veteran's testimony that his knee problem is related to service has been considered. Lay persons are competent to provide opinions on some medical issues. Kahana, 24 Vet. App. at 428. However, the diagnosis of the knee disability at issue here could have multiple etiologies and thus, falls outside the realm of common knowledge of a lay person. Jandreau, 429 F.3d at 1372. The preponderance of the evidence is against the claims and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for peripheral neuropathy of the hands and feet is denied. Service connection for left knee disability is denied. REMAND The Veteran seeks service connection for PTSD or other acquired psychiatric disorder. His service records show that he had Vietnam service from August 1971 to September 1972 and was assigned to the dental clinic in Nha Trang from March to May 1972, to the dental clinic in Pleiku from May to June 1972, and to the 67th Evacuation Hospital work force from June to July 1972. There are diagnoses of PTSD and major depression of record; however, it is unclear which psychiatric disorder(s) the Veteran has, as none of the diagnoses indicate that they were rendered in accordance with DSM-IV criteria. It is also unclear whether any current acquired psychiatric disorder is related to service. A VA examiner in August 2010 indicated that the Veteran does not have PTSD because he does not meet the criteria for the disorder. The examiner did not clearly indicate which, if any, of the DSM-IV criteria for the disorder the Veteran does not meet. While none of the Veteran's claimed service stressors have been corroborated, and indeed, the Veteran failed to respond directly to VA requests for him to provide stressor information in July and October 2009, he indicated on VA evaluation in May 2009 that he saw a military advisor get his head cut off, that he had partied with people the night before they ended up in body bags with their heads and other parts shot off, and that there was mortar fire at the whole compound he was stationed at in Vietnam. He also indicated on VA examination in August 2010 that while at Phu Bai and Hue, his duties involved dragging bodies and that his base was subjected to mortar and rocket attacks at night. These statements are consistent with the Veteran's service in Vietnam in the areas indicated above. Moreover, it is reasonable to conclude based on these statements that he is alleging that he was in fear of hostile military activity while in Vietnam. A veteran's lay testimony alone generally is insufficient proof of a noncombat stressor, unless he falls under certain exceptions, including whether the stressor is related to hostile military or terrorist activity. See 38 C.F.R. § 3.304(f)(3). As the August 2010 VA examiner did not clearly indicate which of the DSM-IV criteria for a diagnosis of PTSD was not met, the Board will remand for an examination and opinion, to include consideration of 38 C.F.R. § 3.304(f)(3). On remand, any outstanding VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records since August 2010 and associate them with the record. 2. After completion of the foregoing, schedule the Veteran for a VA psychiatric examination in order to determine the precise nature and etiology of any psychiatric disorders which are present. The claims file, and a copy of this Remand, must be reviewed by the examiner in conjunction with the examination. The examiner is advised that the Veteran's has asserted, in essence, that he was in fear of hostile enemy activity while in Vietnam, and this shall be accepted as fact. Based on examination of the Veteran and complete review of the record/claims file, the examiner should provide an opinion that responds to the following: (a) Please identify all psychiatric disorder(s) found on examination of the Veteran, in accordance with DSM-IV. (b) As to each psychiatric disorder, please indicate whether it is at least as likely as not that such is related to his active service. (c) Identify specifically whether the Veteran meets the criteria for a diagnosis of PTSD in accordance with DSM-IV based on fear of hostile enemy activity during his active duty service. Please identify the symptoms that support such diagnosis, or those lacking, but necessary for such diagnosis. In rendering the requested opinions, the examiner should acknowledge any competent reports from the Veteran as to the onset and continuity of symptomatology. The Board notes that there are now more recent treatment records, showing diagnoses of PTSD, since the last VA psychiatric examination in August 2010, when the examiner indicated that he did not feel that the Veteran has PTSD. Any opinions expressed must be accompanied by a complete rationale. 3. After completion of the foregoing, review the claims file and ensure the foregoing development actions have been completed in full, and that no other notification or development action, in addition to that directed above, is required. If further action is required, it shall be undertaken prior to further claims adjudication. 4. Thereafter, readjudicate the Veteran's pending claim in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs