Citation Nr: 1757573 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-29 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities and, if so, whether service connection is warranted, to include as due to herbicide agent exposure. 2. Entitlement to service connection for partially amputated feet, to include as secondary to peripheral neuropathy of the bilateral lower extremities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. Daus, Associate Counsel INTRODUCTION The Veteran had qualifying service from March 1968 to March 1970, including in the Republic of Vietnam (RVN). These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. This appeal has been advanced on the Board's docket. See 38 U.S.C. § 7107(a)(2) (West 2012); 38 C.F.R. § 20.900(c) (2017). FINDINGS OF FACT 1. Service connection for peripheral neuropathy of the bilateral lower extremities was denied in a February 2009 rating decision that became final; new and material evidence was since received. 2. The Veteran's peripheral neuropathy of the bilateral lower extremities is not etiologically related to service. 3. The Veteran's partially amputated feet are not etiologically related to service. CONCLUSIONS OF LAW 1. New and material evidence was received to reopen the claim of service connection for peripheral neuropathy of the bilateral lower extremities. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for establishing service connection for peripheral neuropathy of the bilateral lower extremities have not been met. See 38 U.S.C. §§ 1101, 1110, 1131, 1116, 1137, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.303, 3.102, 3.307(a)(6)(ii), 3.309(e) (2017). 3. The criteria for establishing service connection for partially amputated feet are not etiologically related to service. See 38 U.S.C. §§ 1101, 1110, 1131, 1137, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.303, 3.102, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities was denied in a February 2009 rating decision on the basis of no etiological relationship to service; that decision became final. Since that decision, the record was augmented with new (not cumulative or redundant of that previously of record) and material (sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim) evidence. See November 2012 letter by Dr. Fortson (indicating an etiological relationship between the Veteran's peripheral neuropathy and herbicide agent exposure). As such, reopening is warranted. Service Connection The Veteran generally contends that his service is etiologically related to his peripheral neuropathy of the bilateral lower extremities and, by association, his partially amputated feet. See July 2008 application; June 2013 statement by spouse; June 2013 notice of disagreement. However, based on the evidence discussed below, service connection is not warranted for either disability. The peripheral neuropathy of the bilateral lower extremities disability requires analysis under the presumptive and direct theories of service connection. Regarding presumptive, the Board concedes exposure to herbicide agents due to the Veteran's service in the RVN; however, as the disability did not become manifest to a degree of 10 percent or more within one year after separation, presumptive service connection is not warranted. See 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). Even considering the spouse's lay statement that numbness began in the mid-1980s, which the Board notes to be inconstant with many of the Veteran's reports of onset, the mid-1980s would still be approximately 15 years post-separation. See July 2008 application (the Veteran reported onset in 1997); February 2005 treatment record by Dr. Davis (the Veteran reported onset of leg weakness and numbness of both feet in June 1997); June 2013 statement by spouse (numbness began in the mid-1980s); June 2013 notice of disagreement (the Veteran reported that symptoms began before 1997, but could not recall an exact date). As such, presumptive service connection is not warranted. Regarding direct, the Board again concedes exposure to herbicide agents and notes that this is the only in-service event/injury contended by the Veteran; however, the preponderance of the competent evidence of record weighs against a finding of service connection, as the majority of the longitudinal treatment history indicates that this disability was caused by vitamin B-12 deficiency and/or alcohol consumption. See July 1997 by Dr. Fortson (secondary to alcohol and poor nutrition); October and September 1997 records by Dr. Fortson (secondary to B-12 deficiency to some degree); May 2002 record by Dr. Ridgley (drinking fairly heavily; stopped alcohol consumption for quite a while); May 2002 record by Dr. Fortson ("patient denies drinking or smoking"); January and February 2003 records by Dr. Sims (associated with B-12 deficiency and alcoholism); April 2003 record by Dr. Sims (associated with B-12 deficiency and alcohol); July 2003 (associated with B-12 deficiency and past alcohol use); November 2004 record by Dr. Carr (thought to be due to B-12 deficiency and alcohol use, per the Veteran); February 2005 record by Dr. Davis (possibly due to alcohol use; noted 1997 diagnosis of ethanol abuse and B-12 deficiency); March 2005 record by Dr. Ridgley (thought to be B-12 deficiency, but alcohol may also be a key factor); August 2005 record by Dr. Ridgley (non-diabetic in nature); December 2006 record by Dr. Ridgley (secondary to B-12 deficiency); October 2007 record by Dr. Ridgley (major lower extremity problems secondary to peripheral neuropathy which was felt to be secondary to his years of having a tavern and drinking excessively). Although Dr. Fortson submitted a November 2012 letter that indicated an etiological relationship between the Veteran's peripheral neuropathy and herbicide agent exposure, the Board highlights that Dr. Fortson's analysis does not discuss the Veteran's extensive history of diagnoses secondary to B-12 and alcohol; it merely stated that the opinion was based on a review of the history provided by the Veteran and the history known to Dr. Fortson. Importantly, even if Dr. Fortson had considered the Veteran's comprehensive medical history, as contended by the Veteran, the opinion would still be inadequate for failure to provide sufficient rationale to support the implied finding that herbicide agent exposure is more likely to be etiologically related to the disability than B-12 or alcohol consumption. Additionally, as the Veteran and his spouse do not possess the medical background necessary to competently render etiological opinions, their etiological opinions are of no probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). As the preponderance of the competent evidence of record weighs against an etiological relationship, direct service connection is not warranted. The partially amputated feet disability requires analysis under the secondary and direct theories of service connection. Regarding secondary, the Veteran is not currently service connected for any disability. As service connection for peripheral neuropathy of the bilateral lower extremities was not granted herein, the secondary theory is inapplicable. Regarding direct, the Board again notes its concession of the only contended in-service event/injury of herbicide agent exposure. However, there is no competent evidence indicating an etiological relationship between the partially amputated feet disability and herbicide agent exposure, or any other element of service. To the contrary, the preponderance of the competent evidence of record indicates that the partially amputated feet disability is secondary to the peripheral neuropathy of the bilateral lower extremities, which is not service connected. See October 2007 record by Dr. Ridgley (major lower extremity problems secondary to peripheral neuropathy which was felt to be secondary to his years of having a tavern and drinking excessively). As such, neither secondary nor direct service connection is warranted. ORDER Reopening of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is granted. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is denied. Entitlement to service connection for partially amputated feet is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs