Citation Nr: 18155433 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-45 562 DATE: December 4, 2018 ORDER Service connection for bilateral peripheral neuropathy (PN) of the upper extremities is denied. Service connection for bilateral PN of the lower extremities is denied. FINDINGS OF FACT 1. The Veteran had active duty service in the Army from March 1968 to March 1970. 2. PN was not shown in service, is not causally or etiologically related to service, and was not caused by or permanently worsened in severity by a service-connected disability. CONCLUSIONS OF LAW 1. Bilateral PN of the upper extremities was not incurred in or aggravated by service, nor is it proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1110, 1116, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 2. Bilateral PN of the lower extremities was not incurred in or aggravated by service, nor is it proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1110, 1116, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In October 2017, the Veteran filed a notice of disagreement (NOD) with a May 2015 rating decision on various claims. Subsequently, the Regional Office (RO) has sought clarification from him regarding these claims. Thus, the RO has acknowledged these claims. As action by the Board could delay the RO’s action on those appeals, the Board will not take jurisdiction of those issues at this time. Turning to the claims on appeal, historically, the Veteran filed a service connection claim for colon cancer in 2006 due to claimed in-service mustard gas exposure, which was denied. In the 2014 claim and subsequent notice of disagreement (NOD) for PN, he maintained that PN was the result of chemotherapy treatment for colon cancer. He subsequently asserted that PN was due to herbicide exposure in Vietnam. 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. As peripheral neuropathy is considered an “organic disease of the nervous system,” presumption service connection will be considered. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 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). First, the Board turns to the Veteran’s appeal seeking direct service connection for PN of both hands and feet. The first element, current disability, has been met because the Veteran was diagnosed with PN in 2006. 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 hands or feet. Specifically, the STRs indicate treatment for the Veteran’s eye, carpal tunnel bones and left arm, shoulder, and thigh between 1969-1970. There are no complaints of symptoms such as tingling or numbness of fingers and toes. At separation, his upper extremities, feet, and neurologic system were clinically normal. Therefore, the medical evidence does not support an in-service incurrence. Further, a 2015 VA examiner determined that PN was not related to service. 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, Nonetheless, the medical evidence does not support this theory of entitlement. Specifically, 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. Of note, the record contains medical treatment beginning 36 years after discharge. In 2006, the Veteran experienced weakness in his legs while being prescribed a chemotherapy drug used to treat his colon cancer. He was informed that neuropathy was a known side effect and was further urged to remain warm to help prevent any neurosensory toxicity as a result of the medication. Subsequent medical records between 2013 and 2015 indicate his PN was noted to be attributed to chemotherapy. Likewise, the 2015 VA examiner wrote an addendum to his opinion in 2016 and concluded the Veteran’s PN resulted from taking the chemotherapy medication. This evidence indicates that the Veteran 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 gap of 36 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. As to secondary service-connection, the Veteran contends that PN is secondary to colon cancer. While he has been diagnosed with colon cancer, that claim has been denied and he did not appeal. At this point, he is only service-connected for tinnitus and bilateral hearing loss which have neither been alleged by the Veteran nor contemplated by any reviewing medical professional to have a medical nexus to PN. As he is not service-connected for colon cancer, the record does not support service connection for PN on a secondary basis. As to service connection based on herbicide exposure, the weight of the evidence does not show that the Veteran served in Vietnam. Specifically, the DD-214 does not show any foreign or overseas duty and no medals indicative of service in Vietnam. A review of the service personnel records indicate that he was enroute to Vietnam from Ft. Lewis in July 1969 but in August 1969 he was noted to be in Ft. Riley, where he remained until he separated 7 months later. Treatment records confirm that he was at Ft. Riley from September 1969 until discharge. This evidence suggests that he did not serve in Vietnam. Assuming that the Veteran had no service in Vietnam, he is not entitled to the Agent Orange presumption and the appeal is denied on that basis. Assuming that the Veteran served in Vietnam as found by the RO, 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. Accepting that August 1969 was the last day of presumed exposure (as he was noted to be at Ft. Riley at that time), PN was not shown until 2006, some 36 years later. Therefore, 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 considers direct service connection for PN due to herbicide exposure. As to the first two elements, a current diagnosis of PN has been established. Next, even accepting exposure to herbicides, the medical evidence does not support a direct connection between herbicide exposure and PN. The 2016 addendum from the VA examiner specifically notes that the Veteran’s PN is not caused by his exposure to Agent Orange. Moreover, the weight of medical evidence attributes PN to chemotherapy. The only evidence of record establishing a nexus are lay statements from the Veteran who is competent to report about tingling and numbness in his fingers and toes to include swelling 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 hands and feet 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 under any theory of entitlement and the appeals are denied. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hamilton, Associate Counsel