Citation Nr: 1639658 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 09-09 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as due to exposure to an herbicide agent. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from August 1966 to August 1969, with time lost from February 17, 1967 to February 28, 1967. He received decorations, including the Republic of Vietnam Campaign Medal, the Vietnam Service Medal with Four Bronze Service Stars, the Air Medal, the Expert Rifle, and the National Defense Service Medal. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded in April 2012 and January 2014 for further development. In July 2014, the case was remanded to afford the Agency of Original Jurisdiction (AOJ) the opportunity to adjudicate the issue of entitlement to service connection for the lumbar spine disability. The AOJ granted entitlement to service connection for the lumbar spine disability and assigned an effective date in a September 2015 rating decision. In September 2015, the Veteran was provided notice of this determination and a copy of his appellate rights, and to this date the Veteran has not appealed this determination. The AOJ also granted entitlement to service connection for right lower extremity radiculopathy associated with the lumbar spine disability and assigned an effective date of June 5, 2014 in a March 2016 rating decision. In March 2016, the Veteran was provided notice of this determination and a copy of his appellate rights, and to this date the Veteran has not appealed this determination. The Board notes that the matter on appeal regarding peripheral neuropathy is not intertwined with the matter regarding radiculopathy, as service connection for radiculopathy has been granted as secondary to the lumbar spine disability, and, as discussed below, peripheral neuropathy is not related to the service-connected lumbar spine disability. However, the matter regarding the effective date for the right lower extremity radiculopathy may have been raised by the Veteran's representative in an September 2016 Informal Hearing Presentation, when this September 2016 Informal Hearing Presentation is sympathetically construed in conjunction with the June 2014 Informal Hearing Presentation. As the AOJ has not addressed this matter, the Board does not have jurisdiction over it and refers this matter to the AOJ for clarification and appropriate action. FINDING OF FACT The Veteran served in the Republic of Vietnam during the Vietnam War era and is presumed to have been exposed to an herbicide agent during active service; however, the Veteran's current bilateral lower extremity peripheral neuropathy did not manifest to a compensable degree in service, within the first post-service year, or within the first year after the Veteran's presumed exposure to an herbicide agent; the competent and probative evidence shows that the Veteran's current bilateral lower extremity peripheral neuropathy is not otherwise etiologically related to service, to include as a result of exposure to an herbicide agent; and, the competent and probative evidence shows that the Veteran's current bilateral lower extremity peripheral neuropathy is not proximately due to or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for bilateral lower extremity peripheral neuropathy are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Compliance with Prior Remand In July 2014, the Board remanded the case and directed the AOJ to adjudicate the issue of entitlement to service connection for the lumbar spine disability, and, as discussed above, the AOJ did so. Then, the AOJ readjudicated the claim in a March 2016 supplemental statement of the case. For these reasons, the Board's prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist VA has met all the duty to notify and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2015); 38 C.F.R. §§ 3.159, 3.326 (2015). The RO provided pre-adjudication VCAA notice by letter in June 2006, in which the Veteran was notified of how to substantiate his claim for service connection and information regarding the allocation of responsibility between the Veteran and VA. The Veteran was also provided information on how VA determines effective dates and disability ratings. VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service treatment records, and lay statements have been associated with the record. Further, during the appeal period the Veteran was afforded VA examinations regarding the peripheral neuropathy in April 2012 and September 2015. The examiners each conducted an examination and together, along with the obtained March 2014 VA medical opinion, provided sufficient information such that the Board can render an informed decision. The Board finds that the VA examinations, in conjunction with the other lay and medical evidence of record, are adequate for purposes of determining service connection. Service Connection The Veteran contends that he has peripheral neuropathy of the bilateral lower extremities that is related to service, and the Veteran has raised several theories of entitlement. First, he claims that because he was exposed to an herbicide agent in service, service connection on a presumptive basis is warranted for his peripheral neuropathy. Second, he claims that his peripheral neuropathy symptoms began in service and have continued since service and that therefore service connection on a presumptive basis is warranted for his organic neurological impairment of peripheral neuropathy based on chronicity. Third, he claims that his peripheral neuropathy is etiologically related to herbicide exposure in service. Fourth, he claims that his peripheral neuropathy is secondary to his lumbar spine disability. A Veteran is entitled to VA disability compensation for service connection if the facts establish that a disability resulted from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2015); 38 C.F.R. § 3.303(a) (2015). Peripheral neuropathy, which is an organic disease of the nervous system, is a "chronic disease" under 38 C.F.R. § 3.309 (a); therefore, the presumptive provisions of 38 C.F.R. §3.303 (b) apply to the claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred 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 in order to establish entitlement to service connection. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and peripheral neuropathy (as an organic disease of the nervous system) becomes 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 (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. Id. A veteran who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents. 38 C.F.R. §§ 3.307 , 3.309. The last date on which such veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. The following diseases are deemed associated with herbicide exposure, under current VA regulation: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, Type II diabetes mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. 38 C.F.R. § 3.309 (e). Generally, to establish entitlement to service connection, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). First, the Veteran has been diagnosed with bilateral lower extremity peripheral neuropathy during the appeal period, to include on VA examination in September 2015 and per the Veteran's treating physician, Dr. J. M., in a July 2006 private medical treatment note. Thus, the current disability is shown. Second, the evidence shows that presumption of exposure to an herbicide agent is warranted. A Veteran who served in the Republic of Vietnam during active service during the period from January 9, 1962 to May 7, 1975 shall be presumed to have been exposed to an herbicide agent during active service, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a); see 38 C.F.R. § 3.307(d). Here, the Veteran's service records show that the Veteran served in Vietnam during the requisite period. Thus, the in-service occurrence of herbicide agent is presumed. However, the preponderance of the evidence is against a finding that the Veteran's bilateral lower extremity peripheral neuropathy is related to service. The Veteran is competent to report his symptoms, and the Board finds that the Veteran's reports as to his symptoms that he has observed during the appeal period are credible. For example, the Veteran reported in his May 2006 VA Form 21-526 that he has numbness, tingling, sensitivity to touch, and burning sensation in both legs. The Veteran's wife and child are also competent to report their observations of the Veteran, and the Board finds that these reports are credible. However, the Board notes that the Veteran's statements as to whether his current lower extremity neurological symptoms started in service and continued since onset in service have been inconsistent. First, in the Veteran's May 2006 VA Form 21-526, the Veteran stated that his peripheral neuropathy began in December 2001 and that treatment for this disability began in June 2001. The Veteran also stated in a May 2006 statement that he served in Vietnam, and that he "now suffer[s] from Peripheral Neuropathy." There is no indication that he continued to experience symptoms since his service in Vietnam until that present time. Also, the medical evidence of record reflects the Veteran's reported subjective history of onset of neurological symptoms starting in 2001. In a December 2001 private medical record from Dr. P. J. of Vancouver Neurologists, Dr. P. J. stated that the Veteran reported a history of roughly eight months of cold and tingly toes. In a July 2006 private treatment record from Dr. R. R. of the Oregon Clinic, Dr. R. R. notes that when he saw the Veteran in 2004, the Veteran exported that had symptoms for about three years before that [in 2001]. Dr. R. R. diagnosed the Veteran with axonal peripheral neuropathy with some progression since seen in 2004 and stated that this has been present since about 2001. Then, in the Veteran's February 2008 notice of disagreement, after being denied entitlement to service connection for peripheral neuropathy, the Veteran reported that he complained about his feet stinging in service and was told to get larger shoes. He stated that it helped some but didn't really do the trick and he had to learn to live with it. In his notice of disagreement, the Veteran also stated, "I have had the symptoms on and off since Vietnam, but have kept ignoring it. It would manifest and last about 1-1/2 years and then subside. But since 2001, it has gotten worse." Then the Veteran reported to the April 2012 VA examiner that his symptoms began in 2001, when he began to experience temperature sensation that was "off" and his whole foot would be tingly. Based on the above evidence, the Veteran's reports as to presence of continuing neurological symptoms in the bilateral lower extremities since onset in service have been inconsistent and inconsistent with the other competent evidence of record. The Board also notes that the records are silent for any post-service complaints or medical treatment regarding any neurological impairment of the bilateral lower extremities until over three decades after discharge from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that it is proper to consider the Veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). For these reasons, the Board finds that the Veteran's reported history as to the in-service onset and continuing nature of his current neurological symptoms since service is unreliable, and that this reported history is not credible and therefore has no probative value. The Board notes that the Veteran's report of in-service neurological symptoms potentially associated with his footwear were considered by a VA medical professional in rendering the below-discussed probative March 2014 VA medical opinion. Moreover, the Board finds that the identification of early-onset peripheral neuropathy and the determinations as to onset and etiology of the Veteran's current bilateral lower extremity peripheral neuropathy are essentially medical questions, and as such are beyond its own competence to evaluate based upon its own knowledge and expertise. It follows that the Veteran's determinations that he incurred bilateral lower extremity peripheral neuropathy in service, to include as a result of in-service herbicide exposure, and that his current bilateral lower extremity peripheral neuropathy is secondary to his service-connected lumbar spine disability, are also not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Because the record does not indicate that the Veteran or his representative has medical expertise or training, to include in the fields of orthopedics or neurology, the Veteran's and his representative's lay opinions that his bilateral lower extremity peripheral neuropathy is the result of in-service herbicide exposure or is secondary to his lumbar spine disability are of no probative value. The Board also finds that the identification and diagnosis of diabetes and peripheral neuropathy due to diabetes are medical questions. Because the record does not indicate that the Veteran or his representative has medical expertise or training, the Veteran's and his representative's lay opinions that the Veteran has a disability that is due to medicine that induces glucose impairment and that such disability "resembles" diabetes mellitus, and that the Veteran's peripheral neuropathy is due to this disability, have no probative value. There is no competent evidence of record to show diabetes. Indeed, as discussed below, the medical evidence confirms that the Veteran does not have diabetes. Therefore, no claim for diabetes mellitus is reasonably raised by the record and no claim thereof may be inferred. Cf. Delisio v. Shinseki, 25 Vet. App. 45 (2011) (holding that if the record reasonably indicates that the cause of the pending claimed disability is a non-service-connected disease or disability that may be associated with service, the Board may investigate in the first instance whether that causal disease or disability is related to service to determine whether the pending claimed disability may be service-connected on a secondary basis; if the causal disease or disability is determined to be related to service, and then the pending claim reasonably encompasses a claim for entitlement to service connection for that causal disease or disability, and no additional filing would be necessary to initiate a claim for service connection for that causal disease or disability). Here, the competent and probative evidence of record shows that the Veteran's bilateral lower extremity peripheral neuropathy is not etiologically related to service, to include herbicide exposure in service. The March 2014 VA medical opinion has probative value, as the VA medical professional reviewed the claims file, provided sufficient rationale for his opinions, covered all relevant bases, and based his opinions on medical literature and the Veteran's medical history and probative lay statements. Further, the March 2014 VA medical professional is a neurologist who has the medical expertise to render an opinion as to the nature and etiology of the Veteran's peripheral neuropathy. Further, the March 2014 VA medical opinion is based on the Veteran's probative statements as to the onset of symptoms in 2001. The March 2014 VA medical opinion stated that the Veteran has chronic, and not acute or subacute polyneuropathy. The opinion states that the cause of his polyneuropathy is not known with certainly, but glucose intolerance is the most likely identifiable etiology. The opinion refers to EMG/ NCS findings that classified the Veteran's peripheral neuropathy as sensorimotor axonal polyneuropathy and noted that the slow progression over time since 2001 of his symptoms is consistent with a chronic process. The opinion notes that the medical literature does not support that herbicide exposure causes delayed peripheral neuropathy. The opinion also notes that the Veteran's history of foot tingling prior to 2001 was more likely than not due to a mild, intermittent, compression neuropathies in the feet due to his footwear at that time, and that this neuropathy is unrelated to the Veteran's claimed current peripheral neuropathy. The Board acknowledges the Veteran's argument in the June 2014 Informal Hearing Presentation that the March 2014 VA medical opinion is inadequate. The Veteran, through his representative, stated that the finding that the Veteran has a glucose intolerance and not diabetes is not supported by adequate testing and medical findings, to include consideration of his daily medicine regiment, which the Veteran argues affect glucose. However, this argument is without merit because the March 2014 VA medical opinion expressly referred to medical findings to support the finding of glucose intolerance and was based on a review of the Veteran's medical history, including his medicine regiment. Further, for the reasons discussed above, the Veteran and his representative do not have the medical expertise to render medical diagnoses and opinions as to etiology of the Veteran's symptoms, and therefore this June 2014 argument has no probative value. For these reasons, the March 2014 VA medical opinion is not rendered inadequate. The April 2012 VA medical opinion also has probative value, as the examiner reviewed the claims file, noted the Veteran's lay statements as to the onset of his symptoms, and provided sufficient rationale for his opinions. The April 2012 VA examiner also based the opinion on examination of the Veteran, on medical literature, and on the Veteran's medical history. The April 2012 VA examiner opined that the Veteran has chronic progressive, distal bilateral peripheral neuropathy that is most likely due to his impaired fasting glucose. The April 2012 VA examiner noted that hyperglycemia even below diabetes-range has been associated with nerve dysfunction in medical literature. The Board acknowledges that in a September 2004 private treatment record, the Veteran's treating physician, Dr. J. M., noted that the Veteran reported service in Vietnam and that she advised the Veteran to evaluate the Agent Orange website. Dr. J. M. noted, "I believe this to be a disability defining diagnosis for in-country service where there was expected Agent Orange exposure." However, the Board finds that this statement in the September 2004 private treatment record has no probative value as to the essentially medical question as to whether the Veteran's bilateral lower extremity peripheral neuropathy is related to herbicide exposure. This is because Dr. J. M.'s statement only demonstrates her knowledge of the potential applicability of the presumption of service connection for peripheral neuropathy based on herbicide exposure. However, as discussed below, this particular Veteran's peripheral neuropathy is not entitled to the presumption of service connection on this basis. Given the above VA medical opinions, which are not contradicted by the remaining competent and probative evidence of record, the Board finds that the Veteran's current bilateral lower extremity peripheral neuropathy is not related to service, including as a result of the Veteran's in-service herbicide exposure. Further, there is no competent and probative evidence to show that the Veteran's current bilateral lower extremity peripheral neuropathy is otherwise related to service. Thus, a relationship between Veteran's current bilateral lower extremity peripheral neuropathy and service, to include in-service herbicide exposure, is not shown by the competent and probative evidence. Therefore, service connection is not warranted on a direct basis for the Veteran's current bilateral lower extremity peripheral neuropathy. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Further, the competent and probative evidence is against a finding that the Veteran's is secondary to his lumbar spine disability. A disability that is secondary to a service-connected disease or injury shall be service-connected. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). In a September 2015 VA examination, the Veteran was diagnosed with right leg sciatica that is noted as being related to the back, and the Veteran was separately diagnosed with chronic polyneuropathy of the bilateral lower extremities is not related to the back. The VA examiner opined that the peripheral neuropathy was not proximately due to or the result of the Veteran's lumbar spine disability. The September 2015 VA examiner noted that July 2016 EMG studies confirmed bilateral lower extremity axonal polyneuropathy. The September 2015 VA examiner also stated that Veteran's peripheral neuropathy is a chronic condition more likely related to his history of impaired fasting glucose. The examiner stated that this type of polyneuropathy would not be related to a mechanical issue with his lumbar spine condition. The September 2015 VA medical opinion is supported by rationale and by the clinical data of record, is based on review of the Veteran's claims file, on examination of the Veteran, and on the Veteran's history and lay statements. All clinical testing and records associated with the claims file, to include the 2013 and 2014 private treatment records from Peace Health Pain Clinic, which show that the Veteran has distinct and separate diagnoses of bilateral peripheral neuropathy and of right leg radiculopathy that is associated with the lumbar spine disability. For example, an August 2013 private treatment record from Peace Health Pain Clinic notes that the Veteran has radiating pain from the lumbar spine. The record also notes the diagnosis of peripheral neuropathy "of unknown origin" and that "his baseline pain is still present" even with the Peace Health Pain Clinic's treatment for the lumbar spine disability and right leg radiculopathy. Therefore, the Board finds the September 2015 VA medical opinion, when considered in conjunction with the remaining medical evidence of record, has probative value. Given the September 2015 VA medical opinion and the remaining medical evidence of record, there is no competent and probative evidence to indicate that the Veteran's lumbar spine disability and associated right leg radiculopathy caused the Veteran's peripheral neuropathy or has aggravated the Veteran's peripheral neuropathy. The September 2015 VA examiner addressed the causation of the peripheral neuropathy and concluded that it is not related to the lumbar spine condition. A fair reading of the opinion is that there is no causal relationship between the service-connected lumbar spine and peripheral neuropathy to include by way of aggravations. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran's peripheral neuropathy is proximately due to, the result of or aggravated by the Veteran's service-connected lumbar spine disability. On review, and given the September 2015 VA medical opinion, the Board finds that the Veteran's service-connected lumbar spine disability with associated right leg radiculopathy did not cause or aggravate his bilateral lower extremity peripheral neuropathy, and service connection is therefore not warranted on a secondary basis for this disability. 38 C.F.R. § 3.310. The Board acknowledges that there is a presumption of service connection for an organic disease of the nervous system, such as peripheral neuropathy, that manifests during service or to a compensable degree within the first post-service year, and then again "at any later date, however remote." See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, as discussed above, there is no probative lay evidence of bilateral lower extremity neurological symptoms continuing since service, and the Veteran's reports that he had continuing symptoms thereof since service are outweighed by the lay statements and medical evidence which shows that the Veteran's peripheral neuropathy manifestations had their onset over three decades after service. There is no probative evidence of a combination of manifestations sufficient to identify peripheral neuropathy as manifesting in service or to a compensable degree within the post-service year. For these reasons, the preponderance of the evidence is against a finding of continuity of peripheral neuropathy symptomatology since service. Accordingly, the Veteran's bilateral lower extremity peripheral neuropathy is not entitled to the presumption of service connection on the basis of chronicity. See generally 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Board also acknowledges that there is a presumption of service connection for "early-onset" peripheral neuropathy that manifests to a compensable degree or more within one year after the date of last exposure to herbicides, which would be the last date the Veteran was in Vietnam in this case. See 38 C.F.R. §§ 3.307, 3.309(e). The Board notes that there is still no herbicide-related presumption of service connection for "delayed-onset chronic" peripheral neuropathy. For presumptive purposes, early onset peripheral neuropathy must manifest within one year of herbicide exposure. However, again, as discussed above, there is no probative lay evidence and no competent medical evidence of bilateral lower extremity neurological symptoms manifesting, to include to a compensable degree, until over three decades after service. Thus, the preponderance of the evidence is against a finding of peripheral neuropathy manifested to a compensable degree within one year after the date of last exposure to herbicides. Accordingly, the Veteran's bilateral lower extremity peripheral neuropathy is not entitled to the presumption of service connection on the basis of exposure to an herbicide agent. See 38 C.F.R. §§ 3.307, 3.309(e). Because the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral lower extremity peripheral neuropathy, the benefit of the doubt provision does not apply, and the claim on appeal must be denied. See 38 U.S.C.A. § 5107. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral lower extremity peripheral neuropathy is denied. ______________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs