Citation Nr: 1642151 Decision Date: 11/01/16 Archive Date: 11/18/16 DOCKET NO. 15-08 872 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for bilateral lower extremity peripheral neuropathy, including as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty in the Air Force from March 1951 to March 1972. This appeal to the Board of Veterans' Appeals (Board) is from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony during a videoconference hearing before the undersigned; a transcript of this hearing is of record. The case was remanded in September 2015 for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, he was exposed to Agent Orange during service in Vietnam. 2. The Veteran's bilateral lower extremity peripheral neuropathy was not shown to have manifested in service, and there is no probative evidence that it manifested to a compensable degree within one year of separation from service or that it is otherwise related to service. CONCLUSION OF LAW The criteria are not met for service connection for bilateral lower extremity peripheral neuropathy. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2016). The duty to notify has been met. See September 2014 VCAA/DTA Letter received in October 2014, July 2015 Board Hearing transcript, and Bryant v. Shinseki, 23 Vet. App. 488 (2010). Neither the Veteran nor his representative has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances . . . it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment and personnel records, post-service treatment records, claims submissions, and lay statements have been associated with the record. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the electronic claims file, and he has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. Development set out in the September 2015 remand was accomplished, and the VA obtained an examination and opinion that is adequate to decide the claim. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). II. Legal Criteria and Analysis The Veteran contends that his peripheral neuropathy is related to his military service, to include exposure to Agent Orange during Vietnam. Generally, to establish 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for peripheral neuropathy if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain diseases associated with Agent Orange exposure in service are presumed to be service connected if the disease is manifested to a compensable degree within a specified time period. 38 C.F.R. §§ 3.307, 3.309. If a Veteran was exposed to a herbicide agent, including Agent Orange, during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. Such diseases include early-onset peripheral neuropathy manifested to a degree of 10 percent or more within one year after the last date on which the Veteran was exposed to an herbicide agent during active service. See 38 C.F.R. § 3.307 (a)(6)(ii). 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 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 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. Notwithstanding the provisions of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.309 (e), relating to presumptive service connection due to exposure to Agent Orange, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98- 542, § 5, 98 Stat. 2 ,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of actual causation, that is, proof the exposure to Agent Orange actually causes a disability, which is not included in the list in 38 C.F.R. § 3.309 (e). See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303 (d). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service personnel records show he served on missions in Southeast Asia from August 1967 to December 1969. See Military Personnel Record received October 2014. Records also show he had TDYs to unspecified locations during the Vietnam era. See page 99 of Military Personnel Record received September 2014. A response from the Air Force Historical Research Agency indicates flights were made by his unit to Vietnam during in 1968 and 1969. See Email Correspondence and Correspondence received April 2016. In light of this evidence and the Veteran's hearing testimony that he had service in Vietnam, reasonable doubt is resolved in the Veteran's favor as to visitation to Vietnam. Consequently, exposure to Agent Orange in Vietnam is presumed. However, as noted, in order to be afforded the presumption of service connection for peripheral neuropathy, early onset peripheral neuropathy must be manifested to a degree of 10 percent or more within one year after the last date on which the Veteran was exposed to an herbicide agent during active service. See 38 C.F.R. § 3.307 (a)(6)(ii). Although there are no definitive dates shown to establish when the Veteran had his last visitation to Vietnam, the Air Medal he received for missions in Southeast Asia shows the time period during which the Veteran participated in missions was from August 1967 to December 1969. Therefore, to receive service connection on a presumptive basis based on Agent Orange exposure, the claimed disability would have had to manifest no later than December 1970. The Board has carefully reviewed his service treatment records to determine if there were any manifestations noted during his period of service, and found that these records are devoid of any complaints, findings, or diagnoses of peripheral neuropathy of the lower extremities. Even the separation examination and medical history reports were silent for complaints, findings, and a diagnosis. See STR - Medical. Consistent with this evidence is the Veteran's hearing testimony in which he indicates he did not have any symptoms until after he retired from military service, which was March 1972. See page 5 of Hearing Testimony. Thus, there is probative evidence that there were no manifestations of peripheral neuropathy within 1-year of his last visitation to Vietnam in service. The Veteran's representative asserts in a September 2016 brief that this in an incorrect interpretation of the regulations involving the Agent Orange presumption for peripheral neuropathy. While many of the disabilities that are presumptively related to Agent Orange exposure only require manifestations any time after service to at least a compensable degree, 38 C.F.R. § 3.307(a)(6)(ii) carves out an exception for 3 disabilities, one of which is early onset peripheral neuropathy. For these three disabilities the time period is limited to manifestations to at least a compensable degree within the first year of the last exposure to Agent Orange in service. Since the regulations are very specific, it is unclear what other interpretation can be made. Although not requested in the Board remand, the RO obtained an opinion in July 2016 from a physician who essentially found that the Veteran's bilateral lower extremity peripheral neuropathy was unrelated to Agent Orange exposure or service. Such was based on the absence of findings in service and for many years after service. See VA Examination received July 2016. Accordingly, the presumption for service connection based on Agent Orange exposure is not available. There is, however, another presumption with regard to peripheral neuropathy in which service connection may be granted for the disability as a chronic disease if manifested to at least a compensable rating within 1-year of separation from service. See 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In the Veteran's testimony, he stated that shortly after retirement he began to have symptoms, but was told by his doctor that they were related to arthritis. It was not until years later that he was informed by VA and outside neurologists it was peripheral neuropathy. See page 5 of Hearing Testimony. Similarly, he reported on his March 2015 substantive appeal that shortly after service he complained of pain in his legs and feet that was diagnosed as arthritis. See VA 9 Appeal to Board of Appeals. A review of the record shows that the Veteran's peripheral neuropathy was first diagnosed in February 2013. At that time, he gave a history of persistent burning discomfort in his feet for 2 to 3 years that progressively worsened over time. See pages 48 and 49 of Medical Treatment Records - Government Facility received June 2005. The Veteran is competent to report that he had symptoms after he separated from service that continued. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses). However, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). Lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, when his testimony is viewed in the context of the other evidence of record it is not credible. See Baldwin v. West, 13 Vet. App. 1 (1999); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). At the time peripheral neuropathy was diagnosed, the Veteran only reported having a 2 to 3 year history of symptoms. The Board finds that information provided to a healthcare provider for treatment or diagnostic purposes is reliable as the declarant is motivated to provide accurate information. Therefore, while competent, the reports of continuity of symptomatology are not credible in light of the other evidence of record. See Madden, supra. Furthermore, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis of peripheral neuropathy falls outside the realm of common knowledge of a lay person. Id. To state that the symptoms the Veteran experienced shortly after service are attributable to peripheral neuropathy requires a degree of medical knowledge the Veteran does not possess. The Veteran asserts his symptoms were initially diagnosed as arthritis and many years later he was diagnosed with peripheral neuropathy. As a layperson, he is not competent to state that the initial diagnosis was incorrect. Since there is no evidence of peripheral neuropathy in the lower extremities until more than 40 years after service, service connection as a chronic disease is not available. See 38 C.F.R. §§ 3.307, 3.309(a). In the absence of manifestations in service and probative evidence of symptoms continuing after service, service connection may not be established based on continuity of symptomatology. See Walker, supra. Significantly, there is no nexus evidence of record in favor of the claim. Only the Veteran's own belief that his bilateral lower extremity peripheral neuropathy is related to service has been offered in support of his claim, which the Board finds is not competent for this purpose. Although it is error to categorically reject a lay person as competent to provide a nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. Thus, taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. The Veteran may not offer competent nexus evidence in this matter given the complexity of the disability at issue. The Board finds that the preponderance of the evidence is against the claim for service connection for bilateral lower extremity peripheral neuropathy. Since the evidence is not in equipoise, the Veteran is not afforded the benefit of the doubt. See 38 C.F.R. §§ 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (ORDER ON NEXT PAGE) ORDER Entitlement to service connection for bilateral lower extremity peripheral neuropathy, including as due to exposure to Agent Orange ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs