Citation Nr: 18153130 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 17-04 821A DATE: November 28, 2018 ORDER Entitlement to service connection for bilateral lower extremity peripheral neuropathy as due to Agent Orange exposure is denied. FINDING OF FACT The Veteran’s bilateral lower extremity peripheral neuropathy is not shown to be causally or etiologically related to any disease, or injury in service, or due to Agent Orange exposure. CONCLUSION OF LAW The criteria for service connection for bilateral lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§1101, 1110, 1111, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1952 to July 1980, with service in the Republic of Vietnam. Service Connection Generally, in order to establish service connection for the claimed disability, there must be (1) medical 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) medical 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). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. § 3.307 (a)(6)(iii). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam war period. 38 C.F.R. § 3.307. For these Vietnam war Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The list of diseases associated with exposure to certain herbicide agents include early onset peripheral neuropathy, and to warrant the presumption of service connection it must have manifested to a degree of 10 percent within the first year after the last exposure to an herbicide agent during service. 38 C.F.R. § 3.307. 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. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Entitlement to service connection for bilateral lower extremity peripheral neuropathy as due to Agent Orange exposure The Veteran contends that his bilateral lower extremity peripheral neuropathy was due to his exposure to Agent Orange (AO). As an initial matter, the Board notes that AO exposure has been conceded by the AOJ in the November 2016 Statement of Case. Service treatment records are silent for any diagnosis, complaints, or treatment of peripheral neuropathy. The first instance in the record of a diagnosis is an October 1996 private neurologic examination by Dr. W.E.E. indicating bilateral lower extremity peripheral neuropathy. No etiology was discussed. VAMC treatment records indicate an impression of peripheral neuropathy in December 2000 but no discussion on its etiology. In his June 2016 conference with a Decision Review Officer, the Veteran testified that he had symptoms in service but did not report them because he didn’t want to lose his flight status and that his symptoms have been persistent since service. Based on the foregoing evidence of record, the Board finds that service connection is not warranted on a presumptive or direct basis. With regard to a presumptive basis, the earliest indication of a peripheral neuropathy diagnosis was in 1996, over 15 years after the Veteran left active service. As noted above, to warrant service connection on a presumptive basis, peripheral neuropathy must manifest to a compensable degree of 10 percent or more within one year of the date of last herbicide exposure during active military, naval, or air service. As that is not the case here, service connection on a presumptive basis is not warranted. Regarding a direct basis, the Board again notes no diagnosis, complaints, or treatment of peripheral neuropathy during the Veteran’s active service. Further, while exposure to AO has been conceded, there is no probative evidence of record that links the Veteran’s current diagnosis with in-service AO exposure that occurred over 3 decades prior. While the Veteran believes his peripheral neuropathy is related to his active service, he is not competent to establish this nexus, because he is not shown to possess any medical expertise. Furthermore, although the Veteran recently reported he experienced his peripheral neuropathy symptoms ever since he was a pilot in service, this statement is contradicted by the history he reported to Dr. W.E.E. in 1996, that the symptoms began 6 months prior to seeing this physician. The Board finds no credible evidence of in-service manifestation of peripheral neuropathy, persistent and/or recurrent symptoms of disability since service, or competent evidence suggesting that peripheral neuropathy is due to active service. Under these circumstances the greater weight of the evidence is against the claim. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel