Citation Nr: 1754731 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-23 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a neck disability. 2. Entitlement to service connection for polyneuropathy of the bilateral upper extremities, claimed as pain and numbness, to include as due to exposure to herbicide agents. 3. Entitlement to service connection for polyneuropathy of the bilateral lower extremities, claimed as pain and numbness, to include as due to exposure to herbicide agents. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. D. Logan, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1972 to February 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision of the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA). In the May 2009 rating decision, the RO denied the Veteran service connection for neck pain and numbness and bilateral leg pain and numbness. The Veteran submitted a notice of disagreement in April 2010. In response to a May 2013 statement of the case, the Veteran perfected his appeal in June 2013. On his substantive appeal received in May 2015, the Veteran indicated that he wished to have a BVA hearing at a local VA Office. Nonetheless, according to a Report of General Information dated in September 2015, the Veteran changed his mind, indicating that he no longer wanted a hearing. He asked that his appeal be sent to the Board for a decision. His hearing request is deemed withdrawn. As reflected on the title page, for the sake of clarity, the Board separated the claim of entitlement to service connection for neck pain with arm numbness into two separate claims - one for a neck disability and one for peripheral neuropathy of the arms. FINDINGS OF FACTS 1. The Veteran had service in the Republic of Vietnam during the Vietnam era and is therefore presumed to have been exposed to Agent Orange or other herbicide agents during such service. 2. The Veteran's currently diagnosed neck disability is not etiologically related to any incident during active service. 3. The Veteran's polyneuropathy of the bilateral upper and lower extremities is not caused by or related to his active duty service, to include presumed exposure to herbicide agents during Vietnam service. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for a neck disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria to establish entitlement to service connection for polyneuropathy of the bilateral upper extremities are not met. 38 U.S.C. §§ 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 3. The criteria to establish entitlement to service connection for polyneuropathy of the bilateral lower extremities are not met. 38 U.S.C. §§ 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board is therefore satisfied that there is no prejudice to the Veteran in adjudicating this appeal. Pertinent Laws and Regulations Governing Service Connection Claims Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing she has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Showing continuity of symptomatology since service under 38 C.F.R. § 3.303 (b) is an alternative means of linking a claimed disability to service, but is only available for the 'chronic diseases' specifically enumerated in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Relevant here, the claimed peripheral neuropathy is a chronic disease as listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303 (b) do apply for this condition. However, the Veteran's diagnosed cervical spine disc disease is not a chronic disease as listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303 (b) do not apply for this condition. Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. VA has amended 38 C.F.R. § 3.310 to reflect that it will not concede aggravation unless certain additional conditions are met. 38 C.F.R. § 3.310 (b). Additionally, VA has established a presumption of herbicide agent exposure applicable to Veterans who served in Republic of Vietnam during the Vietnam War. Specifically, a veteran who, during active military, naval, or air 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 during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e). In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), the Federal Circuit upheld the VA's interpretation of 38 C.F.R. § 3.307 (a)(6)(iii) as requiring proof of some duty or visitation onshore in Vietnam. Certain diseases are deemed associated with herbicide exposure under VA law and shall be service connected if a Veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 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 C.F.R. § 3.307 (d) are also satisfied. Early-onset peripheral neuropathy is included in this list of diseases. See 38 C.F.R. § 3.309 (e). However, even if a Veteran does not fall within the class of service members afforded the herbicide presumptions under 38 C.F.R. §§ 3.307 (a)(6), 3.309(e), a claimant can still show that he was actually exposed to herbicides, and that a disorder resulting in disability or death was in fact causally linked to this herbicide exposure. See Combee v. Brown, 5 Vet. App. 248 (1993). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Neck Disability Claim The Veteran seeks service connection for a neck disability, claimed as neck pain. The threshold consideration for any service connection claim is the existence of a current disability and the weight of the competent evidence in this case demonstrates that the Veteran is diagnosed with a neck disability. In this regard, a magnetic resonance image (MRI) taken in June 2008 showed evidence of moderate dural compression with cord flattening at C5-6 and multilevel severe foranimal stenosis from C3-4 and C6-7. Furthermore, the Veteran was afforded a VA examination in November 2014 where he was diagnosed with cervical spine degenerative disc disease. Thus, the first element required for direct service connection, the existence of a present disability, is met. However, the Veteran's service treatment records (STRs) are silent for any complaints, treatments, or diagnosis of a neck injury while in service. He discharged from service in 1974. The first evidence of any neck problems is not shown in the medical records until 1977, after having fallen at work. VA received the Veteran's claim for service connection for neck pain in September 2008. In November 2014, the Veteran was afforded a VA compensation examination. After review of the entire claims file, the examiner opined that it was less likely as not that the Veteran's cervical degenerative disc disease was incurred from injuries sustained in service. The examiner stated that the STRs did not indicate any treatment for neck pain or a neck condition. The examiner considered the Veteran's report that he had had neck pain since his military service, but also noted that he was vague about when it began and was unable to provide specific dates or a specific injury in-service. The Veteran only reported that he performed "very heavy physical duty during service." The examiner also noted that the Veteran reported that he had a significant fall at work in 1977, after active duty, and that he had chronic neck and back pain since that time and was unable to perform physical work. The Board finds the November 2014 VA examination and medical opinion to be competent and highly probative as to the likely etiology of the Veteran's neck disability. The opinion was factually accurate and based on a review of the entire claims file. The opinion was also accompanied by a detailed rationale. Notably, there is no contrary competent opinion of record. The Veteran, as a layperson, is competent to attest to what he observes or senses, such as a neck pain during and ever since service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, he is not competent to diagnose a neck disability or medically relate it to service as he is not shown to possess the training and expertise to make these determinations. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board finds that the Veteran's lay statements as to etiology are inconsistent with, and outweighed by, the competent medical evidence of record. Based on the foregoing, service connection for a neck disability is not warranted in this case. The preponderance of the evidence indicates that the Veteran's cervical spine degenerative disc disease did not incur in service, and it is not shown to otherwise be related to service. Finally, the Board notes that the Veteran did not assert, and the competent evidence does not suggest, any relationship between the Veteran's current cervical spine disability and herbicide agent exposure during service. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim for service connection for a neck disability that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Therefore, the Veteran's service connection claim for a neck disability must be denied. Polyneuropathy of the Bilateral Upper and Lower Extremities The Veteran also asserts that he is entitled to service connection for peripheral neuropathy of the bilateral upper and lower extremities, claimed as pain and numbness, as due to exposure to herbicide agents. The Veteran's January 1972 enlistment examination reflects a normal neurological clinical evaluation and is silent for any neurologic complaints, treatments, or diagnoses in the upper and lower extremities. The remaining STRs also show no neurologic complaints or diagnoses in the upper and lower extremities. As indicated, the Veteran was discharged from service in 1974. The Veteran completed an August 1974 Report of Medical History and a June 1979 Report of Medical History for purposes of pre-employment at the Puget Sound Naval Shipyard and those reports show no neurologic complaints or diagnoses in the upper and lower extremities. According to United States Department of Labor Worker's Compensation Injury report, the Veteran injured his low back in August 1979 while working at the Puget Sound Naval Shipyard. Treatment notes associated with the injury show the Veteran's complaints of lumbar radiculopathy. VA emergency room notes dated in April 2003 show the Veteran's report of having had circulatory problems progressing over the past 2-3 years. He complained of numbness and cramping in the legs. He also reported numbness in his fingertips. He stated that he "drinks a six-pack of beer every day." Assessment was "numbness and tingling in both feet and finger tips -no evidence of PVD or circulatory problem. Not sure of etiology but differential includes diabetes, alcohol abuse, and kidney problems to name a few." VA primary care notes dated in July 2003 show a diagnosis of peripheral neuropathy. Nursing progress notes dated in April 2004 show the Veteran's complaints of tingling in feet and legs. A November 2005 vascular consultation note indicates that the Veteran's hands and feet numbness was not attributable to vascular disease. In addition, the Veteran reported that he was recently released from incarceration for multiple "driving while intoxicated" violations. An EMG was ordered to rule out nerve entrapment in the left lower extremity. VA Primary care notes dated in March 2006 show the Veteran's complaints of bilateral lower leg heaviness and discomfort. He complained of restless legs In a May 2008 physical medicine note, the Veteran's bilateral hand symptoms were attributed to carpal tunnel syndrome. A January 2008 treatment note indicates that the Veteran experienced chronic back pain "since a falling injury in 1977." Furthermore, the examiner noted the Veteran was positive for Hepatitis C. The Veteran also reported constant numbness and tingling in the toes and occasionally in the fingers. The results of a June 2008 MRI showed evidence of moderate dural compression with cord flattening and multilevel severe foranimal stenosis from C3-4 and C6-7 of the cervical spine. The Veteran was afforded a VA compensation examination in November 2014 during which he reported numbness and tingling in his hands, shins, calves, and feet. The examiner diagnosed polyneuropathy of the bilateral upper and lower extremities. The examiner indicated that the Veteran's upper extremity neuropathy was a sensory polyneuropathy which involved both of his hands in their entirety, distal to the wrists. The examiner noted that previous EMG studies indicated radiculopathy and carpal tunnel syndrome. However, the examiner determined that "symptoms of numbness and tingling involving the entire palmar and distal aspects of the hands, without any radiating pain from the neck, does not fit the pattern of carpal tunnel syndrome or cervical radiculopathy." The examiner opined that due to its pattern of involvement, it was less likely as not that the Veteran's peripheral neuropathy of the upper extremities was due to his cervical spine condition. The examiner also determined that the Veteran's bilateral lower extremity neuropathy was a sensory polyneuropathy, which involved the Veteran's entire foot and portion of the lower extremities below the knees. The Veteran was diagnosed with lumbar degenerative disc disease during the examination, but the examiner opined that due to its pattern of involvement, it was less likely as not that the Veteran's peripheral neuropathy of the lower extremities was due to his lumbar spine disability. The examiner opined that it was less likely as not that the Veteran's peripheral neuropathy for the upper and lower extremities incurred in or was caused by an in-service injury or event, to include as due to herbicide agent exposure. The examiner indicated that there were several possible etiologies of the Veteran's polyneuropathy, such as his chronic hepatitis C, which is known to cause sensory neuropathy. Another possibility entertained by the examiner was the Veteran's history of alcoholism, as indicated by his reported drinking of 6 beers per day and incarceration for alcohol abuse. The examiner also determined that there was not sufficient evidence to show that the Veteran's neuropathy was due to any kind of herbicide agent exposure and there was no evidence that it manifested within one year of separation. In fact, the examiner noted that that the Veteran reported that the onset of the neuropathic symptoms did not occur until the 1980s. The examiner found there was not enough evidence to connect all or some of the neurological conditions to any other type of environmental exposure while in Vietnam. The examiner concluded because there was little evidence to support herbicide or other toxic substance exposure as the cause of the neuropathy, and because there were other more likely causes, such as the Hepatitis C and alcohol abuse, it was less likely as not that the Veteran's bilateral upper and lower peripheral neuropathy was due to an in-service event or exposure. Analysis After review of all evidence of record, both lay and medical, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for polyneuropathy of the bilateral upper and lower extremities. Initially, the Board finds there is a current diagnosis polyneuropathy of the bilateral upper and lower extremities, as evidenced by the November 2014 VA examination report. However, as indicated, the Veteran's STRs are silent for any neurologic complaints, treatments, or diagnoses referable to the upper and/or lower extremities. Service connection for polyneuropathy based on chronicity during service or based on continuity of symptomatology is not warranted. As noted, the Veteran's STRs do not reflect any neurologic complaints, or diagnoses of neuropathy of the upper and lower extremities. The Veteran recently stated that he first experienced some neurologic symptoms in the 1980's, which was years after service discharge. Moreover, the first medical evidence of any kind of neurologic problems is dated in 2003 approximately 30 years after service separation. See 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 that tends to weigh against a claim for service connection). Thus, the evidence weighs against a finding of chronicity during service or continuity of symptomatology since service. Service connection on these bases is therefore not warranted. Moreover, because there are no symptoms of or diagnoses of polyneuropathy of any severity within one year of separation, service connection for peripheral neuropathy may not be presumed as having been incurred in service pursuant to 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). The Veteran's primary contention is that his polyneuropathy of the upper and lower extremities is related to exposure to herbicide agents while swimming in the waters when he served on the USS Sacramento, which was stationed offshore the Republic of Vietnam. As noted, the Veteran had active service from March 1972 to February 1974, and according to his DD-214, he had Vietnam service and received the Vietnam Service Medal. Therefore, he is presumed to have been exposed to herbicide agents therein. See September 2014 VA Memorandum. As stated above, early-onset peripheral neuropathy is included in the list of diseases which can be presumed to be related to service based on exposure to herbicide agents. See 38 C.F.R. § 3.309 (e). However, 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, there is no lay or medical evidence of record of "early-onset" peripheral neuropathy manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active service. Notably, the evidence in this case does not show, and the Veteran does not contend, that he developed early onset peripheral neuropathy within a year after the last date on which the Veteran was exposed to an herbicide agent during active service. The Board reiterates that there is no medical evidence of any neurologic problems until 2003, decades after service separation. Because the Veteran was not diagnosed with early-onset peripheral neuropathy, entitlement to service connection on a presumptive basis based on exposure to herbicide agents is not warranted. However, the Veteran can still show that he was actually exposed to herbicide agents, and that a disorder resulting in disability was in fact causally linked to this herbicide exposure. See Combee v. Brown, 5 Vet. App. 248 (1993). Even conceding herbicide exposure, there is no competent, credible, and probative evidence suggesting any relationship to the Veteran's neuropathy. The November 2014 VA examiner opined that that the Veteran's within a year after the last date on which the Veteran was exposed to an herbicide agent during active service is less likely as not due to herbicide agent exposure. The examiner indicated that the Veteran's diagnosis of hepatitis C and his former alcohol abuse are more likely the causes of the Veteran's within a year after the last date on which the Veteran was exposed to an herbicide agent during active service. Furthermore, the examiner noted that scientific studies established no correlation between herbicide agent exposure and delayed-onset peripheral neuropathy. There is also no competent evidence of record establishing a direct relationship between the Veteran's bilateral upper and lower extremity within a year after the last date on which the Veteran was exposed to an herbicide agent during active service and his period of active service. Again, the November 2014 VA opinion found that the Veteran's neuropathy is less likely as not related to his service. The VA examiner noted a number of etiologies that are more likely the cause of the Veteran's neuropathy, none of which was the Veteran's military service or any incident incurred therein. The Board finds the November 2014 VA examination and medical opinion to be competent and highly probative as to the likely etiology of the Veteran's within a year after the last date on which the Veteran was exposed to an herbicide agent during active service in the upper and lower extremities. The opinion was based on review of the entire claims file and the Veteran's VA treatment records, was accompanied by a detailed rationale addressing the differences and resolving any discrepancies, and is consistent with his treatment records, and there is no contrary opinion of record. The Board considered the Veteran's lay statements. However, the question of whether his current peripheral neuropathy is related to his military service is a complex medical question, not capable of lay observation. Because the evidence does not indicate that the Veteran has the appropriate medical training, experience, or expertise, he is not competent to comment on the etiology of his peripheral neuropathy, to include relating it to his military service and/ or the presumed herbicide agent exposure. See 38 C.F.R. § 3.159 (a)(2) (2017); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Moreover, to the extent that the Veteran asserts that his upper extremity peripheral neuropathy is secondary to his cervical spine degenerative disc disease, entitlement to service connection for a neck disability has been denied in this decision. Therefore, aside from the VA examiner's finding that the Veteran's peripheral neuropathy of the upper extremities is less likely as not related to his neck disability, a service connection claim as secondary to the neck disability still fails. Similarly, the VA examiner determined that due to the pattern of the Veteran's neuropathy in the lower extremities, it is not related to his back disability. Aside from this unfavorable opinion, the RO last denied service connection for a low back disability in a November 2008 final rating decision. Therefore, service connection as secondary to the back disability is not available. For these reasons, the Board concludes that the claim of entitlement to service connection for polyneuropathy of the bilateral upper and lower extremities, to include due to exposure to herbicide agents in the Republic of Vietnam, must be denied. The preponderance of the evidence is against the Veteran's claims and the doctrine of reasonable doubt is not applicable in the instant appeal. 38 U.S.C.A § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for a neck disability is denied. Entitlement to service connection for polyneuropathy of the bilateral upper extremities, claimed as pain and numbness, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for polyneuropathy of the bilateral lower extremities, claimed as pain and numbness, to include as due to exposure to herbicide agents, is denied. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs