Citation Nr: 18152885 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 15-33 565 DATE: November 27, 2018 ORDER Service connection for peripheral neuropathy (PN) of the bilateral upper extremities is denied. Service connection for PN of the bilateral lower extremities is denied. FINDINGS OF FACT 1. The Veteran had active duty service in the Army from October 1969 to August 1971, including a tour of duty in Vietnam. 2. PN of the bilateral upper and lower extremities was not shown in service, not shown within one year of herbicide exposure, not shown to a compensable degree within one year of service, was not continuous since service, and is not causally or etiologically related to service, to include herbicide exposure. CONCLUSIONS OF LAW 1. PN of the bilateral upper extremities was not incurred in service. 38 U.S.C. §§ 1110, 1116, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 2. PN of the bilateral lower extremities was not incurred in service. 38 U.S.C. §§ 1110, 1116, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a presumptive basis for certain diseases resulting from exposure to an herbicide agent (including Agent Orange) for veterans who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are associated with herbicide exposure include early-onset peripheral neuropathy. 38 C.F.R. § 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Regardless of the theory of entitlement, the first element is evidence of a current disorder. In 2014, electroneurodiagnostic studies indicated that he had a small fiber neuropathy affecting his upper and lower extremities. Therefore, a current disorder of the upper and lower extremities has been shown. As to direct service connection, as noted, the first element – a current diagnosis – has been met. As to the second element, the service treatment records (STRs) are negative for complaints of, treatment for, or a diagnosis of PN of either the upper or lower extremities. Importantly, the upper and lower extremities and neurological system were clinically normal at the time of separation. Therefore, the medical evidence does not show an in-service incurrence and does not support the appeal on a direct basis. Next, PN is considered as an “other organic disease of the nervous system;” therefore, presumptive service connection applies but the medical evidence does not support this theory of entitlement. As noted, a chronic disorder manifested by PN of the upper and lower extremities was not shown in service. Further, the medical evidence does not show continuous symptoms consistent with PN since discharge. Specifically, VA clinical records dated in 2006 do not show PN or any complaints related to the upper or lower extremities on the Problem List. A January 2006 physical examination related that the Veteran had no sensory abnormalities. This evidence suggest that the Veteran was not having any complaints related to PN at that time. In an April 2008 physical examination, the Veteran had good peripheral pulses in both upper and lower extremities and the sensory and motor systems were intact. This evidence indicates that he did not have continuous symptoms associated with PN since service separation. Similarly, this medical evidence does not show that he sought treatment for PN or any symptoms reasonably attributed to PN that would warrant a 10 percent rating within a year of service separation. The earliest evidence of PN began in approximately 2011, nearly 40 years after service separation. The gap of 40 years between service and the onset of PN symptoms is one factor, along with other factors such as the absence of in-service neurological injury, disease, or symptoms, that tends to weigh against a finding of continuous symptoms of PN since service. Therefore, the medical evidence does not support the appeal on a presumptive basis. The Veteran’s main assertion is that PN should be service connection based on exposure to Agent Orange during his service in Vietnam. As noted above, the diseases subject to presumptive service connection based on herbicide exposure includes PN. However, the regulation specifically identifies the disease to be “early-onset peripheral neuropathy.” Early-onset PN is defined to mean that PN manifested to a degree of 10 percent or more within one year after the last date on which a veteran was exposed to an herbicide agent during active service. Here, the Veteran served in Vietnam from October 1970 to August 1971. Therefore, August 1971 was his last date of presumed exposure. As PN was not shown until 2011, some 40 years later, the medical evidence does not support a finding of “early-onset” PN and does not support the appeal based on presumptive exposure to herbicides. Next, under Combee, the Board will consider direct service connection for PN due to herbicide exposure. As to the first two elements, a current diagnosis of PN has been established. Further, the Veteran has been exposed to herbicides and an in-service incurrence is acknowledged. However, the medical evidence does not support a direct connection between herbicide exposure and PN. The only evidence of record establishing a nexus are lay statements from the Veteran who is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the symptoms in his upper and lower extremities due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). As result, the preponderance of the evidence is against the appeal for service connection for PN in his upper and lower extremities under any theory of entitlement and the appeal is denied. The Veteran next requested a VA examination in his Form 9 but he underwent an examination in April 2015 that specifically addressed PN. Moreover, the Board finds that there is sufficient medical evidence to decide the claim without prejudice to the Veteran. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Next, additional medical evidence was submitted after the statement of the case; however, a waiver of review by the Agency of Original Jurisdiction (AOJ) is unnecessary as the evidence is redundant and/or cumulative of contentions and medical findings already considered. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hamilton, Associate Counsel