Citation Nr: 18154293 Decision Date: 11/30/18 Archive Date: 11/29/18 DOCKET NO. 16-42 973 DATE: November 30, 2018 ORDER Entitlement to service connection for bilateral peripheral neuropathy of the extremities to include paralysis of the sciatic nerve, paralysis of the upper median nerve and bilateral peripheral neuropathy is denied. FINDING OF FACT Peripheral neuropathy to the lower and upper extremities did not manifest during service or within one year of active service discharge; and, the preponderance of the evidence fails to establish that a present peripheral neuropathy disability is etiologically related to service, to include presumed exposure to herbicide agents in Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral peripheral neuropathy of the extremities to include paralysis of the sciatic nerve, paralysis of the upper median nerve and bilateral peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from January 1966 through January 1968. He was honorably discharged. This matter come before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO) in Cleveland, Ohio. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004). Veterans diagnosed with early-onset peripheral neuropathy who, during active 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 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). Peripheral neuropathy (PN), if manifest to a degree of 10 percent or more for a herbicide exposed Veteran may be presumed service connected. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307 (a)(6)(i). The requirement that neuropathy (for presumptive acute and subacute PN) must resolve within two years under 38 C.F.R. §§ 3.307 (a)(6), 3.309(e) was revised effective September 6, 2013. 78 Fed. Reg. 54763 (Sep. 6, 2013). It was noted that the National Academy of Sciences (NAS) had determined that the evidence did not support an association between herbicide exposure and delayed-onset PN, defined as having its onset more than one year after exposure. VA has also determined that chronic peripheral nervous system disorders such as late-onset PN (but excluding early-onset PN), have no positive associated with herbicide exposure. Certain chronic diseases, including organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1112, 1113; 38 C.F.R. § 3.307 (a)(3), 3.309(a). Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection. Stefl v. Nicholson, 21 Vet. App. 120 (2007). When a claimed disability is not included as a presumptive disability, direct service connection may nevertheless be established by evidence demonstrating that the disability was in fact incurred during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. The Veteran contends he developed peripheral neuropathy in both upper and lower extremities as a direct result of exposure to an herbicide agent. Service treatment records are negative for complaints, diagnosis, or treatment for symptoms associated with any type of peripheral neuropathy to the upper or lower extremities. On separation in January 1968, the medical examiner noted the Veteran’s nervous system was normal. There is also no documented complaints, treatment, or diagnosis of peripheral neuropathy until many years after service. VA treatment records show the Veteran visited a VA medical center (VAMC) in January 2007 complaining of discomfort in his calf muscles. He stated the pain began in 2005. The VA physician observed decreased vibration in the Veteran’s lower extremities and diagnosed the condition as restless leg syndrome. The VA physician noted that the Veteran exhibited signs of mild neuropathy and suggested further testing be conducted. In April 2007, the Veteran underwent an electromyograph (EMG) study which resulted in findings compatible with peripheral neuropathy in the lower extremities. In June 2012 the Veteran underwent a VA examination. The examiner tested the Veteran’s upper and lower nervous system to determine the extent of peripheral neuropathy. The Veteran reported he first experienced symptoms of hand pain, numbness and tingling prior to 2005. He believed the pain was due to working in a factory. The Veteran also reported that his foot pain, numbness and tingling began in 2005. The examiner observed sensory decreases in the Veteran’s feet. The Veteran exhibited signs of trophic changes which were characterized by hair loss and smooth, shiny skin. The VA examiner discovered abnormalities in the Veteran’s upper extremities. She reported the Veteran exhibited mild and incomplete paralysis in the right and left median nerve. The Veteran’s test results were normal with regards to the upper musculocutaneous nerve, circumflex nerve, long thoracic nerve, upper, middle, and lower radicular nerve groups. The VA examiner also observed abnormalities in the Veteran’s lower extremities. She reported the Veteran exhibited mild and incomplete paralysis in the right and left sciatic nerve, external popliteal nerve, and internal popliteal nerve. The Veteran’s test results were normal with regards to the lower musculocutaneous nerve, posterior tibial nerve, anterior crural nerve, internal saphenous nerve, obturator nerve, external cutaneous nerve, nad ilio-inguinal nerve. The Veteran does not meet the requirements for presumptive service connection under 38 C.F.R. §§ 3.307 (a)(3), (a)(6)(iii), or 3.309(a). The June 2012 examiner specifically noted that the Veteran’s neurological condition was not a result of Vietnam-era herbicide exposure because his medical condition appeared recently. The Veteran was diagnosed with peripheral neuropathy in 2011. Indeed, by his own report to VA physicians and the 2012 examiner, his symptoms manifested over 35 years after separation. Presumptive service connection peripheral neuropathy (based on herbicide agent exposure or the one-year presumption) is denied. The Veteran may still seek direct service connection by fulfilling the three Shedden elements. The Veteran is diagnosed with upper and lower extremity peripheral neuropathy. Shedden element (1) has been satisfied. As to the Shedden element (2), the Veteran was a combat engineer stationed in Vietnam. He is presumed to have been exposed to herbicide agents. The Board finds that the second element for service connection has been met. Shedden element (3) requires the existence of a nexus between the Veteran’s current disability and his in-service exposure to an herbicide agent. The Board finds the uncontradicted VA examiner’s report competent and highly probative. The examiner found no nexus between the Veteran’s peripheral neuropathy of the upper and lower extremities. She based her conclusion on the fact the Veteran did not experience any symptoms until 35 years after his last exposure. Additionally, medical records are silent of any complaints due to neuropathy until 2007. In conclusion, the Board finds that service connection for bilateral peripheral neuropathy of the extremities to include paralysis of the sciatic nerve, paralysis of the upper median nerve and bilateral peripheral neuropathy as the result of in-service exposure to herbicide agents is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The preponderance of the evidence is against the claims. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mahmoudi, Associate Counsel