Citation Nr: 18146916 Decision Date: 11/02/18 Archive Date: 11/01/18 DOCKET NO. 15-43 081 DATE: November 2, 2018 ORDER Entitlement to service connection for left lower extremity neuropathy, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for right lower extremity neuropathy, to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT The Veteran’s left and right lower extremity neuropathy first manifested many years after service separation are not shown to be in related to service, including exposure to an herbicide agent. CONCLUSIONS OF LAW 1. The criteria for left lower extremity neuropathy have not been met. 38 U.S.C. 1110, 1116 (2012); 38 C.F.R. 3.303, 3.307, 3.309 (2018). 2. The criteria for right lower extremity neuropathy have not been met. 38 U.S.C. 1110, 1116 (2012); 38 C.F.R. 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1968 and again between May 1974 and February 1975. The Veteran served in the Republic of Vietnam and is the recipient of the Combat Infantryman Badge and the Purple Heart. 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 requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. 3.303(d). 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 absent affirmative evidence to the contrary. 38 U.S.C. 1116; 38 C.F.R. 3.307 (a)(6)(iii). “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) (2017). Service connection is presumed for certain listed diseases if a veteran was exposed to an herbicide agent, such as Agent Orange, during active service. 38 C.F.R. § 3.309(e). For purposes of this presumption, early-onset peripheral neuropathy is a listed disease. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309(e). Effective September 6, 2013, the VA amended its regulations regarding presumptive service connection for peripheral neuropathy associated with herbicide exposure. See 78 Fed. Reg. 54766 (September 6, 2013) (final rule) (replacing the terms acute and subacute and transient peripheral neuropathy with early-onset peripheral neuropathy; removing the requirement under the former §§ 3.307(a)(6)(ii) and 3.309(e) that acute and subacute peripheral neuropathy appear within weeks or months after exposure; and removing the requirement that the condition resolve within two years of the date of onset in order for the herbicide presumption to apply). To warrant service connection, early-onset peripheral neuropathy must 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)(6)(ii). These amendments apply to claims received by VA on or after September 6, 2013, to include the Veteran’s claim. Even if the requirements for presumptive service connection are not met, a claimant may still establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Left and Right Lower Extremity Neuropathy VA treatment records confirm that the Veteran has a present disability of lower left and right lower extremity peripheral neuropathy. Indeed, he has experienced pain in his lower extremities since 2010 and was subsequently diagnosed with peripheral neuropathy. The Veteran alleges that his peripheral neuropathies of his lower extremities are the result of presumed exposure to herbicides in Vietnam. The Veteran’s service records indicate that the Veteran had combat service in the Republic of Vietnam between 1966 and 1968; therefore, he is presumed to have been exposed to an herbicide agent. Crucially however, no symptoms of peripheral neuropathy were identified at the Veteran’s examination upon separation from his first period of service in 1968, and subsequent Service Treatment Records (STRs) do not show that the Veteran sought treatment for neuropathy or neuropathy symptoms in service. As noted above, no diagnosis or treatment for peripheral neuropathy occurred until many years after service ended. Indeed, the Veteran has not asserted his symptoms began during or shortly after service. When asked at a July 27, 2016 VA Specialty Clinic Interview how long he has had symptoms since onset, the Veteran responded “[a]bout five or six years.” As the onset of symptoms of peripheral neuropathy did not begin until approximately 2010, exceeding the within one-year requirement of 38 C.F.R. 3.307(a)(6)(ii), the presumption of service connection for early-onset peripheral neuropathy does not apply. Turning to direct service connection, although the Veteran is indeed a combat Veteran, he has not asserted that he sustained any injury in service that was the cause of his neuropathy disability, other than having been exposed to Agent Orange. The Veteran has stated that he was told by his doctor that his neuropathy was likely caused by his exposure to Agent Orange during his service in Vietnam. Although the Board finds the Veteran competent and credible to make this statement, the Board does not assign significant probative weight to the statement without the corresponding doctor’s reasoning for the connection. Since the Veteran is not shown to have the medical expertise required to provide an opinion linking his condition to service, the statements of the Veteran are only somewhat probative regarding the etiology of the Veteran’s neuropathy. Notably, a January 2017 VA Agent Orange examiner discussed the Veteran’s left and right lower neuropathy symptoms and the possible connection to Agent Orange exposure during service. However, to make the connection, the examiner indicated that symptoms must have been present within one year after exposure. The Board places greater probative weight on the January 2017 VA examiner’s opinion, which includes a medical explanation, than it does on the Veteran’s own report of what his physician told him regarding medical nexus. Indeed, underlying the January 2017 VA examiner’s opinion is the observation that it is early-onset neuropathy that is more likely linked to herbicide agents, and not neuropathy with onset over 40 years after exposure. There are no additional medical records that demonstrate a potential nexus between the Veteran’s current disability of left and right lower neuropathy and the Veteran’s active service. While the Veteran himself may believe his peripheral neuropathy is related to service, he is not competent to provide a nexus opinion in this case. The etiology of the Veteran’s neuropathy is a complex medical etiological question, and the Veteran is not shown to have the medical expertise required to provide an opinion linking his condition to service, or to herbicide exposure therein. For these reasons, the preponderance of the evidence is against the claim of entitlement to service connection for a left and right lower extremity neuropathy. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. See 38 U.S.C. 5107 (b); 38 C.F.R. 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David M. Sebstead, Associate Counsel