Citation Nr: 1755050 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 09-42 235A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for right lower extremity axonal type motor polyneuropathy. 2. Entitlement to service connection for left lower extremity axonal type motor polyneuropathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to November 1969. He served in the Republic of South Vietnam from June 1968 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2012, the Veteran testified at a hearing before the undersigned, via videoconference. A transcript of the hearing is associated with the claims file. In a February 2013 Board decision the Board reopened and remanded the claims for further development. In November 2014 the Board again remanded the claims for additional development. The Board finds that the RO substantially complied with the remand instructions and that any lack of compliance was cured by a subsequent remand. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). FINDINGS OF FACT 1. The preponderance of the evidence weighs against a finding that the Veteran's right lower extremity axonal type motor polyneuropathy was caused by herbicide exposure. 2. The preponderance of the evidence weighs against a finding that the Veteran's left lower extremity axonal type motor polyneuropathy was caused by herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right lower extremity axonal type motor polyneuropathy have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for left lower extremity axonal type motor polyneuropathy have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that his axonal type motor polyneuropathy of the bilateral lower extremities is related to herbicide exposure during Vietnam service. Notably, personnel records show the Veteran has service in Vietnam; as such, herbicide exposure is presumed. As the Veteran has a diagnosis of axonal type motor polyneuropathy of the bilateral lower extremities the issue that remains disputed is whether his disability had its onset in service or is related to herbicide exposure. See March 2013 VA Examination Report; Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); 38 C.F.R. §§ 3.307, 3.309 (2017). There is no service connection presumption for axonal type motor polyneuropathy thus the claim must be considered under a direct theory of entitlement. See 38 C.F.R. § 3.309(e) (the presumption applies only to subacute peripheral neuropathy seen within one year of exposure and that resolves within 2 years). The Veteran's service treatment records are silent for complaints or treatment for axonal type motor polyneuropathy. At separation the Veteran's clinical evaluation showed normal lower extremities. See October 1969 Report of Medical Examination. The Veteran does not assert and the record does not show that his polyneuropathy had its onset in service. Complaints of pain in the lower limbs were first noted in 2004 - over 30 years after separation. See VA Treatment Records. The Veteran was diagnosed with axonal type motor polyneuropathy in both lower extremities without denervation in distal muscles probably secondary to past chronic alcoholism. Id. Notably, the Veteran's axonal type motor polyneuropathy of the lower extremities was consistently attributed to a history of chronic alcoholism. The Veteran was afforded a VA examination in March 2013. An addendum medical opinion was issued in June 2017. The examiner opined that the Veteran's axonal type motor polyneuropathy of the lower extremities was less likely as not due to Agent Orange exposure in service. The examiner reasoned that the Veteran's axonal type motor polyneuropathy had its onset thirty four years after herbicide exposure and occurred after years of alcohol abuse. The Board finds that the VA examiner's opinion adequate and highly probative to the question at hand. The examiners possessed the necessary education, training, and expertise to provide the requested opinions. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, the VA examiner's opinion was based on an examination and interview of the Veteran, as well as on a review of the service treatment records, the post-service treatment records and examinations, and the lay statements of the Veteran. The opinions considered an accurate history, were definitive and supported by a detailed rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has also considered the Veteran's assertions that his axonal type motor polyneuropathy of the lower extremities was caused by Agent Orange exposure in service. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). It is also well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Whether the Veteran's current neurological disorder is related to Agent Orange exposure requires medical expertise to determine. Thus, the Board finds the VA treatment records and June 2017 VA medical opinion more probative than the Veteran's statements. The only other evidence supporting a nexus between the Veteran's neurological disorder of the lower extremities and Agent Orange exposure are September 2010 and May 2011 VA treatment notes by a primary care physician concluding that the Veteran had a diagnosis of peripheral neuropathy, probably a combination of Agent Orange and "Etoh-associated" (that is alcohol related). However, the June 2017 VA examiner indicated that these notes were not supported by the Veteran's medical history. See June 2017 VA Addendum Opinion. The examiner also cited to several treatment notes in the Veteran's medical records in support of his conclusion. Thus, the Board finds that the June 2017 VA medical opinion is more probative. In reaching this conclusion, 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, that doctrine is not applicable. 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). ORDER Entitlement to service connection for right lower extremity axonal type motor polyneuropathy is denied. Entitlement to service connection for left lower extremity axonal type motor polyneuropathy is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs