Citation Nr: 1800194 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 15-21 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the right upper extremity. 2. Entitlement to service connection for peripheral neuropathy of the left upper extremity. 3. Entitlement to service connection for peripheral neuropathy of the right lower extremity. 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Reed, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1954 to December 1956. This case comes before the Board of Veterans' Appeals (the Board) from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This case was previously before the Board in April 2017. At that time, the case was remanded for additional development. The case has now returned to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran was not exposed to "herbicide agents" as defined in 38 C.F.R. § 3.307(a)(6) (2017). 2. The Veteran's peripheral neuropathy of the right upper extremity was not shown in service or manifest to a compensable degree within the first post-service year, was not shown for many years following service, and is not etiologically related to an event, disease, or injury of service origin. 3. The Veteran's peripheral neuropathy of the left upper extremity was not shown in service or manifest to a compensable degree within the first post-service year, was not shown for many years following service, and is not etiologically related to an event, disease, or injury of service origin. 4. The Veteran's peripheral neuropathy of the right lower extremity was not shown in service or manifest to a compensable degree within the first post-service year, was not shown for many years following service, and is not etiologically related to an event, disease, or injury of service origin. 5. The Veteran's peripheral neuropathy of the left lower extremity was not shown in service or manifest to a compensable degree within the first post-service year, was not shown for many years following service, and is not etiologically related to an event, disease, or injury of service origin. CONCLUSION OF LAW 1. The criteria for service connection for peripheral neuropathy of the right upper extremity are not met. 38 U.S.C. §§ 1.110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309(a) (2017). 2. The criteria for service connection for peripheral neuropathy of the left upper extremity are not met. 38 U.S.C. §§ 1.110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309(a) (2017). 3. The criteria for service connection for peripheral neuropathy of the right lower extremity are not met. 38 U.S.C. §§ 1.110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309(a) (2017). 4. The criteria for service connection for peripheral neuropathy of the left lower extremity are not met. 38 U.S.C. §§ 1.110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board does note that the Veteran's service treatment records are not available, with the exception of the Veteran's exit examination. In a case in which a Veteran's service records are unavailable through no fault of his or her own, there is a heightened obligation for VA to assist the Veteran in the development of their claim and provide reasons or bases for any adverse decision rendered without these records. See Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (quoting O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)); Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) (noting that the duty to assist is "particularly great in light of the unavailability of the Veteran's exit examination and full Army medical records"). The Veteran was provided notice of the unavailability of his records and informed of the efforts undertaken to locate such records; he was advised that he could submit any copies of records he had in his possession. See December 2013 Correspondence and February 2014 VA Memorandum. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Stegall Considerations The Veteran's claim was remanded in April 2017 to obtain outstanding VA medical records; identify and obtain any outstanding private medical records; to contact the Veteran to clarify his claim; and attempt to verify exposure to "herbicide agents." Additional VA treatment records were obtained and associated with the Veteran's claims file in April 2017 and October 2017. After the Veteran identified additional private medical records, they were obtained and associated with the Veteran's claims file in May 2017. The Veteran clarified his claim to indicate that he was not claiming exposure to ionizing radiation in addition to "herbicide agents" in August 2017. The AOJ attempted to verify the Veteran's exposure to "herbicide agents" with Department of Defense (DoD) and the U.S. Army and Joint Services Records Research Center (JSRRC) in August 2017. The AOJ received negative responses. The Veteran was notified of these responses in a September 2017 administrative decision. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Legal Criteria to Establish Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017). Direct Service Connection To establish service connection on a direct basis, a Veteran must show: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Secondary Service Connection In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Additionally, a disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b) (2017). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service Connection for Chronic Diseases For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017); Walker v Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 263 (2015). 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. Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b) (2017). This rule does not mean that any manifestation in service will permit service connection. 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. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b) (2017). Service Connection due to Exposure to "Herbicide Agents" Service connection can also be established on a presumptive basis for certain diseases associated with in-service exposure to "herbicide agents." See 38 U.S.C. § 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Presumptive service connection herbicide agents exposure is warranted for the defined conditions if the requirements of 38 C.F.R. § 3.307(a)(6) (2017) are met, which include a presumption of exposure to herbicides for Veterans with service in Vietnam during specific time periods, or service in specific areas of Korea during specific time periods. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.309(e) (2017). If a veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309(e) (2017) to be applicable. Exposure to herbicides is not presumed in such instances. However, once exposure to herbicides has been established by the evidence of record and verified through the appropriate service department or other sources, the presumption of service connection found in 38 C.F.R. § 3.309(e) (2017) for herbicide-related diseases is applicable. Notwithstanding the foregoing discussion regarding presumptive service connection, the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Proof of direct service connection between exposure and disease entails showing that exposure during service actually caused the malady which developed years later. Actual causation carries a difficult burden of proof. See Combee, 34 F.3d at 1042. Competence and Credibility The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The Court has also held that contemporaneous records are more probative than history as reported by a Veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that the Veteran was competent to report hip disorder, pain, rotated foot; limited duty, physical therapy, and treatment in service). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (holding that a layperson is competent to identify a simple condition such as a broken leg). Of note, the Court of Appeals for Veterans Claims has found that a layperson is capable of observing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Nevertheless, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also 38 C.F.R. § 3.159 (a)(2). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that "although interest may affect the credibility of testimony, it does not affect competency to testify"). Analysis The Veteran has claimed service connection for peripheral neuropathy of the upper right, upper left, lower right, and lower left extremities. The Veteran has reported that he believes his condition is due to exposure to "herbicide agents" (also referred to by the Veteran as "Agent Orange.). The Veteran's private medical records verify that he has a current diagnosis of peripheral neuropathy of the upper right, upper left, lower right, and lower left extremities. Thus the first element necessary to establish service connection has been demonstrated. However, the preponderance of the evidence is against establishing an in-service event, injury, or incident related to his current disabilities. The Veteran's exit examination does not indicate that the Veteran had symptoms or a diagnosis of peripheral neuropathy at the time he left service. Furthermore, the Veteran himself has, on multiple occasions, stated that he did not suffer from the claimed disabilities until decades after he separated from active service. Indeed, the only in-service event the Veteran has indicated may be related to his current disabilities is exposure to "herbicide agents." The Veteran has indicated that while he was stationed at Fort McClellan, he was exposed to "herbicide agents." The Veteran's exposure to "herbicide agents" cannot be presumed under the applicable regulations. The Veteran's service records do not show and the Veteran does not claim service in any of the designated locations or times where herbicide exposure can be presumed. See 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.309(e) (2017). As the Veteran's exposure cannot be presumed, it must be verified. Here the Veteran has stated that he was handled the "herbicide agents" while stationed at Fort McClellan between December 1954 and December 1956. He has stated that they had access to the strongest chemicals including Agent Orange (an "herbicide agent"). The September 2017 Memorandum documents the AOJ's efforts to verify any herbicide exposure which includes attempts to verify the Veteran's exposure to "herbicide agents" with Department of Defense (DoD) and the U.S. Army and Joint Services Records Research Center (JSRRC) in August 2017 as noted above. However, the DoD has provided VA with a list of locations outside Vietnam and the Korean DMZ where "herbicide agents" were used, tested, or stored; and that list does not include Fort McClellan. It was also noted that Fort McClellan was not part of the shipping supply line for "herbicide agents." The DoD has further indicated that "herbicide agents" were developed specifically for the Vietnam War for use between 1962 and 1971, which falls after the Veteran's service period. The Board finds that the information from the DoD is more probative to the issue of whether the Veteran was exposed to the "herbicide agents." It is specialized information that is thorough and supported by research. Therefore, the preponderance of the evidence is against finding the Veteran was exposed to "herbicide agents" while stationed at Fort McClellan. As the Veteran's exposure to "herbicide agents" cannot be established. The presumptions associated with such exposure cannot be applied. Further, the presumptions associated with chronic diseases cannot be applied, as the Veteran has denied that the condition manifested in service, manifested to a compensable degree within one year of separation, or that there was a continuity of symptomatology since service. Additionally, since exposure to "herbicide" agents cannot be established and the record does not indicate any other event, injury, or incident in service that may be related to his current disabilities, the second element necessary for direct service connection cannot be established. The regulations related establishing service connection on a secondary or aggravated basis are not applicable as the Veteran is not service connected for any disabilities. Therefore, service connection for peripheral neuropathy of the upper right, upper left, lower right, and lower right extremities cannot be establish. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for peripheral neuropathy of the right upper extremity is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs