Citation Nr: 18147611 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-39 496 DATE: November 5, 2018 ORDER The application to reopen the previously denied claims of service connection for peripheral neuropathy of the bilateral upper extremities is granted. The application to reopen the previously denied claims of service connection for peripheral neuropathy of the bilateral lower extremities is granted. Service connection for peripheral neuropathy of right lower extremity is denied. Service connection for peripheral neuropathy of left lower extremity is denied. REMANDED Reopened claims for service connection for peripheral neuropathy of the bilateral upper extremities are remanded. FINDINGS OF FACT 1. In an August 2011 rating decision, the RO denied service connection for peripheral neuropathy of upper extremities. Additional evidence submitted since the RO’s August 2011 denial relates to an unestablished fact necessary to substantiate the claims. 2. In an October 2011 rating decision, the RO denied service connection for peripheral neuropathy of lower extremities. Additional evidence submitted since the RO’s October 2011 denial relates to an unestablished fact necessary to substantiate the claims. 3. Peripheral neuropathy of the lower extremities was not present during active service or within one year of the last date of herbicide exposure. Peripheral neuropathy of lower extremities is not attributable to service, and is not related (causation or aggravation) to a service-connected disease or injury. CONCLUSIONS OF LAW 1. The RO’s August 2011 decision, denying service connection for peripheral neuropathy of upper extremities, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. Evidence submitted since the RO’s August 2011 denial is new and material; and the claims for service connection for peripheral neuropathy of upper extremities are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The RO’s October 2011 decision, denying service connection for peripheral neuropathy of lower extremities, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 4. Evidence submitted since the RO’s October 2011 denial is new and material; and the claims for service connection for peripheral neuropathy of lower extremities are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. Peripheral neuropathy of lower extremities was not incurred in or aggravated by active service; and is not proximately due to or a result of, or aggravated by, a service-connected disease or injury. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1967 to March 1969. He failed to appear for a video-conference hearing before a Veterans Law Judge that was scheduled in August 2018, and his request is deemed withdrawn. 38 C.F.R. § 20.702(d). Application to Reopen Claims for Service Connection VA may reopen and review claims that have been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Under 38 C.F.R. § 3.156(a), “new evidence” is existing evidence not previously submitted; “material evidence” is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claims. August and October 2011 rating decisions denying service connection for upper and lower extremity peripheral neuropathies, respectively, were not appealed and became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Both denials were based in part on a lack of finding of nexus to service. Since those decisions were rendered, the Veteran has established exposure to herbicides in Vietnam; some forms of neuropathy qualify for a presumption of nexus, raising the reasonable possibility of substantiating the claim. Reopening of the previously denied claims is appropriate. Service Connection Service connection is awarded for disability that is the result of a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection requires competent evidence showing: (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). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a) (2012); 38 C.F.R. § 3.303(a) (2017); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Peripheral Neuropathy of Lower Extremities VA regulations provide that, if a Veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disorders: Early-onset peripheral neuropathy is listed among the diseases presumed to be associated with Agent Orange exposure. 38 C.F.R. § 3.309(e). Effective September 6, 2013, VA amended its adjudication regulations concerning presumptive service connection for disabilities associated with exposure to certain herbicide agents. 78 Fed. Reg. 54736 (Sept. 6, 2013). VA removed Note 2 to § 3.309(e), which had required, in order for the presumption to apply, that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset. Id. Under the amendments, peripheral neuropathy still needs to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer needs to be transient. Id. Service treatment records show that, on reports of medical history completed by the Veteran in January 1967 at induction and in March 1969 at separation, he checked “no” in response to whether he ever had or now had neuritis. Peripheral neuropathy of lower extremities neither was demonstrated in active service nor within the first post-service year. Here, the evidence does not show that peripheral neuropathy of lower extremities manifested within one year after the date of last exposure to herbicides. As such, the Veteran is not entitled to presumptive service connection. Moreover, the National Academy of Sciences, after reviewing pertinent studies, found that there was inadequate or insufficient evidence to determine an association between exposure to herbicides and delayed-onset chronic neuropathy. See National Academies of Science, Engineering, and Medicine. 2016. Veterans and Agent Orange: Update 2014. Washington, DC: The National Academies Press. doi: 10.17226/21845 (pages 776-778). Thus, service connection on a presumptive basis as due to Agent Orange exposure is not warranted for delayed-onset peripheral neuropathy of lower extremities. Where a disability is not added to the list of presumptive conditions, a claimant may still establish that service connection is warranted on a direct basis by showing that the claimed disability is at least as likely as not causally linked to herbicide exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Here, private records show some signs of mild neuropathy in feet in November 2010. VA records, dated in March 2011, show that the Veteran had undergone fusion of the lumbar spine (L4-L5) in June 2007; and reported having chronic lower back and left leg pain since then. Sensory examination in March 2011 revealed decreased sensation along the left L4 distribution. The diagnosis at the time was lumbar radiculopathy and piriformis syndrome. An April 2011 VA examination report reveals a diagnosis of diabetes mellitus, with date of onset in June 2010 and treatment with diet alone. The Veteran reported symptoms of paresthesias, and described feeling as if his feet went to sleep. Sensory examination of each lower extremity was normal. Examination revealed no evidence of neurological disease. Electromyograph studies in May 2011 showed evidence of subacute-to-chronic left radiculopathy. There was no electrodiagnostic evidence for a peripheral neuropathy involving the lower extremities. In a September 2011 addendum, the VA examiner clarified that the Veteran does not have diabetic peripheral neuropathy of lower extremities. He does have left leg radiculopathy, which is as least as likely as not related to his low back disability and not from diabetes. During a March 2014 VA examination, the Veteran reported an “electric shock feeling in both feet” and that the right was worse. He reported that his feet will go to sleep and tingle, and that he had these symptoms for four-to-five years. Diabetic peripheral neuropathy was not found. Results of electromyograph studies in April 2014 for the right lower extremity were normal. Following examination, a VA examiner opined in April 2014 that the Veteran’s report of subjective symptoms of pain, numbness, and tingling in lower extremities was less likely than not proximately due to or the result of service-connected disease or injury. In support of the opinion, the examiner reasoned that clinical examination did not support neuropathy; and electromyograph studies were normal for the right lower extremity. The Veteran’s symptoms also have preceded diabetic symptoms by four-to-five years. His diabetes was controlled with diet, and hemoglobin A1 testing was only mildly elevated. In April 2015, another VA examiner reviewed the Veteran’s claims file and opined that there was no evidence of early onset peripheral neuropathy during Vietnam service or within one year of the last date of herbicide exposure. Lastly, a VA examiner in September 2011 opined that the Veteran’s radiculopathy of the left lower extremity was related to his low back disability, and unrelated to diabetes. Service connection has not been awarded, to date, for any low back disability. In this case, the evidence does not reflect that the Veteran’s radiculopathy of the left lower extremity is “part and parcel” of, or proximately due to or aggravated by, any service-connected disease or injury. Accordingly, secondary service connection is not warranted. There is no medical evidence that any claimed peripheral neuropathy of lower extremities is in any way related to active service or to a service-connected disability. Hence, a basis for compensation is not established. The preponderance of the evidence is against granting service connection for peripheral neuropathy of lower extremities on direct, presumptive, or secondary bases. The benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Peripheral Neuropathy of Upper Extremities The Veteran seeks service connection for peripheral neuropathy of upper extremities, and has asserted that the claimed disability is secondary to his service-connected cervical spine strain. Given manifestations of mild joint pain to hands and service-connected disability, a reasonable basis for a possible nexus is raised, and examination is required. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2016 to the present. 2. Schedule the Veteran for a VA peripheral nerves examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all neurological conditions of the upper extremities and for each must as to whether it is at least as likely as not (50 percent probability or more) is caused or aggravated by service or by service-connected disability. The role, if any, of the service-connected cervical spine disability must be discussed. A full and complete rationale for all opinions expressed is required. 3. 3. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issue. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary C. Suffoletta