Citation Nr: 18155068 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 12-01 102 DATE: December 4, 2018 ORDER Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to exposure to herbicide agents, is denied. FINDING OF FACT The preponderance of the evidence does not demonstrate that the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities was incurred in or caused by active military service, to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1964 to December 1966 and from March 1967 to February 1970, including service in the Republic of Vietnam. This matter is on appeal from a March 2010 rating decision. In a March 2017 decision, the Board denied, in part, the Veteran’s claim for service connection for peripheral neuropathy. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In November 2017, the Court granted a joint motion for remand (JMR) vacating the Board’s March 2017 decision and remanding for further appellate review. In June 2018, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). 38 U.S.C. § 7109; 38 C.F.R. § 20.901(a). The record reflects that VHA requested the medical opinion from Martinsburg, West Virginia VA Medical Center (VAMC). In July 2018, a medical expert opinion was obtained from a VA neurologist. Duties to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA’s duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to exposure to herbicide agents The Veteran seeks entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities. He contends that he is entitled to direct service connection for delayed-onset peripheral neuropathy based on exposure to herbicide agents during service. The Veteran served in the Republic of Vietnam from January 1966 to December 1966 and from November 1967 to November 1968, and is therefore presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Board will thus determine whether such exposure was the cause of the Veteran’s subsequently-diagnosed peripheral neuropathy. As an initial matter, in its March 2017 decision, the Board determined that the Veteran’s delayed-onset peripheral neuropathy is not among the diseases presumptively associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). This finding is not in dispute; therefore, entitlement to service connection on a presumptive basis will not be further addressed herein. The question before the Board is whether the Veteran is entitled to direct service connection. See Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). The Veteran’s service treatment records do not show complaint, treatment, or diagnosis of peripheral neuropathy or any other neurological issue in either the upper or lower extremities during service. The Veteran’s January 1964 enlistment examination and February 1970 separation examination reports noted normal upper and lower extremities, feet, and neurologic systems upon physical examination. The Veteran denied a history of neuritis on both examinations. Although the Veteran reported foot trouble on his separation examination, this was attributed to tinea pedis. Private treatment records show that the Veteran was first diagnosed with peripheral neuropathy of the bilateral upper and lower extremities in May 2004. At that time, his treating physician noted that electrophysiological study showed the Veteran to have mild to moderate left peroneal motor-axonal neuropathy of uncertain etiology but probably secondary to chronic radicular-stenotic changes, and mild bilateral lower extremity diffuse sensory neuropathy of uncertain etiology and of uncertain clinical significance. Because the Veteran was not diagnosed with peripheral neuropathy until 34 years after separation, it is considered “delayed-onset.” The Veteran submitted two medical opinion letters from his private physician, Dr. B., an Associate Professor of Neurology, dated April 2009 and June 2010. In the letters, Dr. B. stated that the Veteran has no standard or conventional risk factors for peripheral neuropathy (i.e., no “conventional basis”). Therefore, Dr. B. opined that the Veteran’s history of exposure to Agent Orange while serving in Vietnam is most likely the cause of the Veteran’s peripheral neuropathy and its associated symptoms. However, the Board notes that Dr. B. did not cite any medical literature or principles to support this opinion, or offer any rationale other than the elimination of other conventional risk factors. Accordingly, the Board finds the opinions to be too speculative to be used as a basis to grant service connection, and therefore, they are accorded little probative weight. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). As noted above, the Board referred the Veteran’s case to VHA for an expert medical opinion. In July 2018, an advisory medical opinion was obtained from a VA neurologist. Following a thorough review of the Veteran’s medical history and the relevant evidence of record, the VA neurologist opined that there is not a 50 percent or greater probability that the Veteran’s peripheral neuropathy is causally or etiologically related to his active military service. To support his conclusion, the doctor cited to the Veteran’s service treatment records and noted that the Veteran did not have any symptoms of neuropathy during service. Next, the doctor reviewed the Veteran’s post-service treatment records and found it to be significant that the Veteran was tested for signs of neuropathy on four separate occasions by four different physicians between 1997 and 1998 without any sign of neuropathy found. The Veteran was not definitely diagnosed until May 2004 when he tested positive for signs of mild neuropathy. The VA neurologist cited to medical literature which states that about 25 percent of neuropathies are idiopathic, or not traceable to a direct cause, to support his finding that neurologists frequently are unable to find a specific cause for peripheral neuropathy, as in the Veteran’s case. The VA neurologist noted that the Veteran’s private neurologist, Dr. B. did not find a definitive cause of the Veteran’s neuropathy, while, the doctor that diagnosed the condition in May 2004 opined that it may be secondary to (nonservice-connected) spinal stenosis and radicular pain. Nonetheless, the doctor concluded that, absent any significant medical knowledge updates to the contrary, exposure to Agent Orange has not been found to increase the risk of delayed-onset neuropathy. Following careful review of the subjective and clinical evidence of record, the Board finds that the preponderance of the evidence weighs against finding that the Veteran is entitled to direct service connection for his peripheral neuropathy because the evidence does not support a nexus between delayed-onset peripheral neuropathy and exposure to herbicide agents. In making this determination, the Board finds the July 2018 VHA medical opinion to be the only probative, competent medical opinion of record as to nexus regarding the Veteran’s peripheral neuropathy. The VHA opinion provided a fully articulated conclusion adequately supported by medical rationale and citations to the Veteran’s claims file and medical records. Conversely, the medical opinions provide by the Veteran’s private neurologist, Dr. B., were conclusory and speculative, and did not rely on a review of the Veteran’s complete medical history. Although the VA neurologist who provided the VHA opinion was unable to identify the definitive cause of the Veteran’s neuropathy, he fully explained that neuropathies are commonly idiopathic. However, he was able to rule out herbicide agents as the cause as there is no medical evidence to support a finding that exposure to herbicide agents causes delayed-onset neuropathy. For these reasons, the Board finds the July 2018 advisory opinion to be the most persuasive evidence of record, which ultimately weighs against a finding that the Veteran’s peripheral neuropathy was incurred in, or other related to, any in-service event, including exposure to herbicide agents. The Board does not doubt that the Veteran sincerely believes his peripheral neuropathy of the bilateral upper and lower extremities is related to his exposure to herbicide agents during service. However, the Board notes that peripheral neuropathy is not the type of disability that is capable of lay observation and diagnosis and there is no indication the Veteran has the requisite knowledge of medical principles needed to render an opinion on complex matters involving medical diagnoses. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, any opinion by the Veteran regarding the etiology of his peripheral neuropathy is not competent evidence, and any such lay assertions are outweighed by the most probative medical evidence of record. (CONTINUED ON NEXT PAGE) Accordingly, the Board finds that the preponderance of the evidence weighs against finding in favor of service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to exposure to herbicide agents. Because the evidence fails to establish that the Veteran’s disability was incurred in or caused by service, the Veteran’s claim does not satisfy the criteria for service connection. Therefore, the benefit-of-the-doubt rule does not apply and the appeal must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel