Citation Nr: 1801332	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  13-03 510	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to exposure to Agent Orange.

2. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to exposure to Agent Orange.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. Peden, Associate Counsel



INTRODUCTION

The Veteran had active service from November 1967 to November 1969 to include service in Vietnam.

This matter comes to Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision from the Department of Veterans' Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board previously remanded this matter in December 2016 for further development. That development has been accomplished, and the claim has now been returned to the Board for further action. Stegall v. West, 11 Vet. App. 268 (1998).


FINDINGS OF FACT

1. The Veteran does not have peripheral neuropathy of the bilateral lower extremities.

2. The Veteran does not have peripheral neuropathy of the left upper extremity.


CONCLUSIONS OF LAW

1. The criteria for service connection for peripheral neuropathy of the bilateral lower extremities are not met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).

2. The criteria for service connection for peripheral neuropathy of the left upper extremity are not met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).





REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2017); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The duty to notify has been met. See VA correspondence dated August 2010. The Veteran and his representative have not alleged prejudice with regard to notice. Thus, nothing more is required.

In addition, all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, Social Security Adminstration records, and statements in support of the claim. The Board finds that there is no evidence of any additional existing pertinent records. Further attempts to obtain additional evidence would be futile.

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. The medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations, and to adjudicate these claims would not cause any prejudice to the appellant.

Neither the Veteran nor her representative has raised any issues with the duties to notify or 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 duty to assist argument).


II. Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also 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).

Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

VA has established a presumption of herbicide exposure applicable to veterans who served in Republic of Vietnam during the Vietnam War, and a presumption of service connection applicable to veterans who are either presumed to have been exposed to herbicide agents, or who are shown to have been actually exposed to herbicide agents during service. 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. 38 C.F.R. § 3.307 (a)(6)(iii).

In order for service connection to be established by presumption, there must be an herbicide-presumptive disease and there must be evidence to substantiate actual exposure to an herbicide agent. The following diseases are deemed associated with herbicide exposure, under VA law: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The presumptive diseases 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. See 38 C.F.R. § 3.309 (e).

A disease associated with exposure to certain herbicide agents listed in § 3.309 will be considered to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service, provided that such disease shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become 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 military, naval, or air service. 38 C.F.R. § 3.307 (a).

In a July 2010 claim, the Veteran essentially asserted he had peripheral neuropathy of the lower extremities and peripheral neuropathy of the left upper extremity due to service to include exposure to herbicides. 

Service treatment records reveal no evidence of peripheral neuropathy of the lower extremities or the left upper extremity. An August 1967 service entrance examination and a November 1969 service separation examination reveals normal neurologic findings and the corresponding medical history reports reflect no history of or diagnosis of neuritis.

Post-service medical treatment records reveals treatment of the Veteran's service connected myeloma with the pharmaceutical drug Velcade and notes his continual complaints of lower extremity pain. A treatment note dated July 2015 notes "early neuropathy", and an August 2015 note reflect the Veteran had "some neuropathy in the bilateral feet" and was "unable to tolerate Velcade due to neuropathy". Records reflect the Veteran's attending physician did not feel that the Veteran could tolerate Velcade because of its side-effect of neuropathy and wished to pursue other treatment methods. An October 2015 treatment note states neuropathy was mild and "getting better" with changes to medication. 

Social Security Administration records record the Veteran's complaints of leg pain including some "numbness of his right big toe" which began in 2004 or 2005. The examining physician diagnosed the Veteran with peripheral arterial disease of the bilateral lower extremities consistent with pseudo claudication and claudication with history of congestive heart failure. No etiologic opinion concerning the Veteran's leg pain and military service was given.    

A February 2017 VA examination report recorded the Veteran's contentions of numbness, tingling, and burning in the lower legs with symptoms occurring for less than ten years. The examiner found moderate intermittent pain in the right lower extremity and severe intermittent pain in the left lower extremity as well as mild numbness and parasthesias in the right lower extremity and moderate numbness and parasthesias in the left lower extremity. No peripheral neuropathy symptoms were present in the Veteran's left upper extremity. While the examiner noted the Veteran to have trophic changes of hair loss and shiny skin, he opined after examination that the Veteran's pain numbness, tingling, and trophic changes were consistent with his non service connected peripheral vascular disease. The examiner stated the Veteran did not have a diagnosis of peripheral neuropathy, and as such, the examiner opined the condition claimed was less likely than not incurred in or caused by active service.  

A May 2017 medical addendum opinion reflects the examiner's clarifying opinion that the Veteran's neuropathy was a side-effect of the drug Velcade which was used to treat his service connected myeloma. The examiner further found that peripheral neuropathy was a common side-effect for the drug Velcade and affected 37% of the patients with subcutaneous use of the drug versus 50% of the patients with intravenous use of the drug. After review of the Veteran's medical treatment records, the examiner opined that use of Velcade was stopped and the Veteran's symptoms resolved. As rationale the examiner stated he did not find any evidence or treatment for peripheral neuropathy in any records subsequent to the October 2015 note indicated a change in medication, and after his earlier examination, he found the Veteran did not have current evidence or diagnosis of peripheral neuropathy. The examiner concluded that there was no evidence that either an exposure to herbicides or the service connected multiple myeloma disability, to include myeloma treatment, caused or aggravated peripheral neuropathy as it had resolved upon discontinuation of medication.  

After a review of the evidence, the Board finds there is no evidence of early-onset peripheral neuropathy, or indeed, peripheral neuropathy of any classification within the presumptive period and no current diagnosis of peripheral neuropathy. Even assuming, in arguendo, the Veteran did suffer from symptoms of peripheral neuropathy of his extremities during the appeal period, such symptoms appear to have resolved as no current diagnosis has been made. In sum, there are no herbicide-presumptive diseases diagnosed with respect to these claims, and the only neurological disorder of the extremities that has been diagnosed, peripheral vascular disease, has not been shown to be related to the Veteran's military service.
 
The United States Court of Appeals for Veterans' Claims (Veterans Court) has held that the presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative McClain v. Nicholson, 21 Vet. App. 319 (2007). However, Congress has specifically limited entitlement to service-connection to cases where such in-service disease or injury has resulted in disability. See 38 U.S.C. § 1110. Hence, where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 

As there is no diagnosis of peripheral neuropathy of the extremities, the Board concludes that the basic service connection criteria have not been met with respect to these claims regardless of any determination as to actual herbicide exposure. The only evidence in favor of such a relationship consists of the Veteran's lay assertions. 

Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Jandreau, at 1377; 38 C.F.R. § 3.159 (a)(2). 

In sum, the Board finds that, the Veteran does not have an herbicide-presumptive disease pertinent to these issues; the Veteran does not have peripheral neuropathy of the bilateral lower extremities; and the Veteran does not have peripheral neuropathy of the left upper extremity. Therefore, the Board concludes that service connection for the claimed disorders is not warranted. 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 each claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).







ORDER

Entitlement to service connection for peripheral neuropathy of the lower extremities is denied.

Entitlement to service connection for peripheral neuropathy of the left upper extremity is denied.



____________________________________________
Kelli A. Kordich
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs