Citation Nr: 18155564 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 13-09 509 DATE: December 4, 2018 ORDER Entitlement to service connection for peripheral neuropathy of the left lower extremity is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity is denied. Entitlement to service connection for peripheral neuropathy of the right upper extremity is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity is denied. Entitlement to an effective date of November 25, 1994 for coronary artery disease status post myocardial infraction (CAD) is granted. FINDINGS OF FACT 1. The Veteran does not have bilateral peripheral neuropathy of the upper and lower extremities that had its onset in service or within the first post-service year or that is otherwise related to service, including presumed herbicide agent exposure. 2. The Veteran has a covered herbicide disease, IHD, as defined in the applicable regulation. 3. The Veteran’s November 25, 1994 claim for compensation for an irregular heartbeat was received by VA between May 3, 1989, and the effective date of the regulation establishing a presumption of service connection for the covered disease, i.e., August 31, 2010. 4. The evidence of record, including medical records reflecting irregular heartbeats and abnormal EKGs, the Veteran’s February 2014 testimony before the Decision Review Officer (DRO), and an October 2017 VA medical opinion, indicates that IHD arose prior to the November 25, 1994 claim. CONCLUSIONS OF LAW 1. Peripheral neuropathy of the left upper extremity was not incurred or aggravated in service, including as due to any exposure to herbicide agents in service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. Peripheral neuropathy of the left lower extremity was not incurred or aggravated in service, including as due to any exposure to herbicide agents in service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. Peripheral neuropathy of the right upper extremity was not incurred or aggravated in service, including as due to any exposure to herbicide agents in service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. Peripheral neuropathy of the right lower extremity was not incurred or aggravated in service, including as due to any exposure to herbicide agents in service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 5. The criteria for an effective date of November 25, 1994, for the grant of service connection for IHD, have been met. 38 U.S.C. §§ 5103A, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.314, 3.400, 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to August 1969. This matter comes before the Board of Veterans’ Appeals on appeal from September 2011 and September 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2011, the RO granted service connection for IHD (previously claimed as irregular heartbeat) and assigned a 100 percent rating, effective October 5, 2010, and a 10 percent rating from February 1, 2011. The Veteran timely appealed the effective date assigned for the grant of service connection. In September 2012, the RO denied an application to reopen a previously denied claim for service connection for bilateral peripheral neuropathy of the upper and lower extremities. In a September 2017 decision, the Board reopened the previously denied claims for service connection for peripheral neuropathy, and remanded them and the claim for an earlier effective date for service connection for IHD for further development. Service Connection 1. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lay persons may provide evidence of diagnosis and nexus under 38 U.S.C. § 1154 (a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In relevant part, 38 U.S.C. § 1154 (a) (2012) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). “[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d at 1377; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). There is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6). VA laws and regulations provide that, if a veteran was exposed to Agent Orange during service, certain listed diseases, including peripheral neuropathy, are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). Here, the VA has conceded exposure to Agent Orange. The Board notes that during the course of the claim there was a change in the law concerning what type of peripheral neuropathy is presumptively service connected based on in-service Agent Orange exposure. Effective September 6, 2013, the provisions of 38 C.F.R. § 3.309 were revised by replacing the term “acute and subacute” peripheral neuropathy with “early-onset” peripheral neuropathy. VA also removed Note 2 to § 3.309(e), which had required that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset. Under the amendments, peripheral neuropathy still must manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection. 38 C.F.R. § 3.307 (a)(6)(ii). The peripheral neuropathy no longer needs to be transient. See 78 Fed. Reg. 54763 (Sept. 6, 2013). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, including early-onset peripheral neuropathy, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Thus, a presumption of service connection arises for these veterans (presumed exposed to Agent Orange) or, alternatively, a veteran without appropriate service (as described above) but with competent evidence of herbicide exposure, who develops one of the identified diseases. Service treatment records (STRs) are silent as to any complaints, treatments, or diagnoses for numbness in the hands or problems in the feet. The July 1969 separation report of medical examination reflect normal evaluations of the upper and lower extremities. Post-service VA treatment records reflect a diagnosis of peripheral neuropathy of the bilateral upper and lower extremities in November 1996. At a February 2014 hearing before a Decision Review Officer (DRO), the Veteran testified that he was first diagnosed with peripheral neuropathy in 1997, and that he first started having problems in the 1980s, around the same time his heart problems started. A November 2017 VA examination report reflects review of the claims file. The Veteran reported that he had experienced numbness, tingling and cramping of his hands and feet since the 1990’s, and that his current numbness and paresthesias occurred in the insteps of his feet and into the toes bilaterally. The same sensations occurred in the hands bilaterally about the index, middle, and ring fingers, the left dominant hand being worse than the right. The examiner noted that the available medical records revealed no diagnosis of peripheral neuropathy until November 1996 when the Veteran underwent upper extremity EMGs, which revealed “bilateral carpal tunnel syndrome, mild.” There were no studies of the lower extremities. The examiner also noted that the Veteran had a significant medical history for delayed wound healing in the lower legs, and that he was hospitalized in October 2017 because a laceration he sustained when he hit his leg on a chair became infected. He also had chronic edema of the distal lower extremities, and diminished pulses for the dorsalis pedis (DP) and posterior tibial (PT) since July 2008. He was not diagnosed with diabetes mellitus, but had a diagnosis of impaired glucose tolerance since the 1990’s, and he was morbidly obese. In addition, the examiner noted he smoked cigarettes for over 50 years, and continued to smoke today. Incidental findings included MRI of the left knee in December 2014 showing “scattered vascular calcifications,” and going to the emergency department that same month with pain and swelling of the left lower extremity. Further, the VA examiner noted that a November 2010 VA examination report reflected “swelling in legs and ankles;” and an annual physical examination in August 2009 documented low back and neck pain with radicular symptoms for the upper and lower extremities. The record also reflected chronic venous insufficiency. The in-person physical examination revealed discoloration of the feet and lower legs to just above mid-calf bilaterally. The examiner found that the upper and lower extremity neuropathy was sensory only, and there were no motor deficits. He explained that peripheral neuropathy related to Agent Orange occurred within the first year of returning from having “boots on the ground” in Vietnam, and usually improved rather than worsened. The Veteran was discharged from active service duty in 1969 and developed sensory neuropathic symptoms around 1996, approximately 27 years later. In addition, his sensory neuropathic symptoms had become progressively worse. Based on the time his symptoms developed and due to the Veteran’s multiple medical comorbidities, the VA examiner opined that the Veteran’s diagnosis of peripheral neuropathy of the upper and lower extremities was less likely than not incurred in or caused by his active service duty or Agent Orange. For the following reasons, service connection for peripheral neuropathy of the bilateral upper and lower extremities must be denied. At the outset, the Board finds that the Veteran has a current diagnosis of peripheral neuropathy of the bilateral upper and lower extremities. As such, he meets the first criterion for service connection, a current disability. However, the Veteran does not meet the second criterion, an in-service injury or disease. Here, STRs are silent as to any complaints, treatments, or diagnosis for peripheral neuropathy. In addition, there is no evidence that the Veteran experienced any signs or symptoms of peripheral neuropathy within one year of discharge. To the contrary, both the lay and medical evidence reflects that the Veteran first started to experience peripheral neuropathy in the 1980’s or 1990’s, approximately 10 to 20 years after separation from service. In addition, the third criterion for service connection, that of the nexus between service and the current disability, has not been met. Specifically, the November 2017 VA examiner provided a negative opinion. The examiner reviewed the claims file and noted the Veteran’s history of peripheral neuropathy since 1996; as well as his numerous other medical issues, to include chronic venous insufficiency, low back and neck pain with radicular symptoms, and slow healing of the lower extremities. He explained that peripheral neuropathy related to Agent Orange generally occurred within the first year of returning from Vietnam and usually improved rather than worsened. However, the Veteran’s neuropathy manifested approximately several years after service and worsened over time. Therefore, based on the time his symptoms developed and due to the Veteran’s multiple medical comorbidities, the VA examiner opined that the Veteran’s diagnosis of peripheral neuropathy of the upper and lower extremities was less likely than not incurred in or caused by his active service duty or Agent Orange. The November 2017 VA examination is adequate because the examiner reviewed the current evidence of record, including the Veteran’s statements, and contains clear findings with a complete rationale. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner did not conclude that peripheral neuropathy was not related to service because it is not a disease presumed service connected in veterans exposed to Agent Orange; rather, he based his opinion on both when the disease manifested and multiple medical comorbidities. Cf. Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009). To the extent that the Veteran asserts that his bilateral peripheral neuropathy of the upper and lower extremities was incurred in service or is related to exposure to herbicide agents, the Board finds that he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires specialized medical knowledge and the ability to interpret complicated diagnostic medical testing. The Veteran’s statements in this regard are therefore not competent. Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). For the foregoing reasons, the preponderance of the evidence reflects that the Veteran’s bilateral peripheral neuropathy of the upper and lower extremities is not due to disease or injury in service, to include exposure to herbicide agents such as Agent Orange. The benefit of the doubt doctrine is therefore not for application and entitlement to service connection for these claimed disabilities is thus not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to an effective date earlier than October 5, 2010 for CAD Generally, except as otherwise provided, the effective date of an award of compensation based on an original claim will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Where compensation is awarded pursuant to a liberalizing law or a liberalizing VA issue, the effective date of the increased shall be fixed in accordance with facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114 (a)(1). However, if a claim is reviewed on the initiative of VA more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114 (a)(2). Finally, if a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114 (a)(3). In order to be eligible for a retroactive award, the claimant must show that all eligibility criteria for the benefits existed at the time of the effective date of the law or administrative issue and continuously thereafter. 38 C.F.R. § 3.114 (a). Ordinarily, under the above provisions for liberalizing laws, awards based on presumptive service connection established under the Agent Orange Act of 1991 can be made effective no earlier than the date VA issued the regulation authorizing the presumption. Presumptive service connection for IHD was initially established effective August 31, 2010. See 75 Fed. Reg. 53,202-53,216 (Aug. 31, 2010). Nevertheless, with respect to earlier effective date claims for service connection for diseases presumed to be caused by herbicide or Agent Orange exposure, VA has promulgated special rules to implement orders of a United States District Court in the class action of Nehmer v. United States Department of Veteran’s Affairs. See 38 C.F.R. § 3.816; Nehmer v. U.S. Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999); Nehmer v. Veterans Admin. of the Gov’t of the U. S., 284 F.3d 1158 (9th Cir. 2002); Nehmer v. U.S. Veterans Admin., 494 F.3d. 846 (2007). The Nehmer litigation has created an exception to the generally applicable effective date rules contained in 38 U.S.C. § 5110 (g) and 38 C.F.R. § 3.114. In pertinent part, a Nehmer class member is defined as a Vietnam veteran who has a covered herbicide disease. 38 C.F.R. § 3.816 (b)(1)(i). A covered herbicide disease includes a disease for which the Secretary of Veterans Affairs has established a presumption of service connection pursuant to the Agent Orange Act of 1991. 38 C.F.R. § 3.816 (b)(2). Presumptive service connection for IHD was established effective August 31, 2010. See 75 Fed. Reg. 53,202-53,216 (Aug. 31, 2010). The Nehmer regulations provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a Nehmer class member has been granted compensation for a covered herbicide disease. Either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985, and May 3, 1989; or (2) the class member’s claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989, and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease (here August 31, 2010). In these situations, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, unless a claim was filed within one year of service discharge. 38 C.F.R. § 3.816 (c)(1), (c)(2), (c)(3). If neither circumstance exists, the effective date of the award of service connection shall be determined in accordance with either 38 C.F.R. § 3.114 or § 3.400. See 38 C.F.R. § 3.816 (c)(4). The Veteran filed his first claim for entitlement to service connection for irregular heartbeat on November 25, 1994. The RO denied the claim in a June 1995 rating decision, which the Veteran did not appeal. In October 2010, the Veteran filed for service connection for a heart condition after suffering from a heart attack. In September 2012, the RO awarded service connection for CAD. In the rating decision, the RO noted that the Veteran previously filed a claim in 1994 for irregular heartbeat, but that the earliest diagnosis for CAD was in October 2010 when the Veteran had his heart attack. In this case, the Veteran was granted presumptive service connection for IHD (previously claimed as irregular heartbeat) based on exposure to herbicide agents during such service. As such, he is a Nehmer class member. In addition, the Veteran submitted his first claim for service connection for such condition between May 3, 1989, and August 31, 2010, the date on which the liberalizing law that added IHD as a disease presumptively due to in-service exposure to herbicides became effective. Therefore, the effective date for the grant of service connection for IHD must be assigned pursuant to 38 C.F.R. § 3.816 (c)(2). As noted, regulation provides for special effective date rules if the class member’s claim for disability compensation for the covered herbicide disease was received by VA between May 3, 1989, and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease (here August 31, 2010). Thus, the effective date for the grant of service connection for IHD must be the later of the date such claim was received by VA or the date the disability arose. At a February 2014 DRO hearing, the Veteran testified that he first experienced chest pain during service in December 1968, but that he had no other symptoms after his in-service treatment. He explained that he next experienced chest pains in the 1980s when he was working at a tire company, and that he was taken several times to the hospital because an EKG at a doctor’s office showed he was having a heart attack. A November 2017 VA examiner stated that he could not know for certain whether the Veteran’s irregular heartbeat in the 1990s was an indication of IHD. He noted that there was no reference as to the cause of the irregular heartbeat in the records, to include whether it was ventricular or supraventricular. Further, he noted that neither the ECGs nor telemetry strips documented the “irregular heartbeat.” He explained that ventricular tachycardia, ventricular fibrillation, and even frequent premature ventricular contractions could be associated with IHD; but not supraventricular beats. Thus, in the absence of further documentation of the type or cause of the irregular heartbeat, he could not definitively answer whether the Veteran’s irregular heartbeat in the 1990s was indicative of IHD. In addition, when asked the approximate date of onset of the Veteran’s IHD, the examiner noted that the Veteran had documented IHD and myocardial infarction in 2010. He explained that coronary atherosclerosis developed over years, and that the Veteran had a “reportedly normal cardiac catheterization in either 1988 or 1990.” The examiner found that, presumably, “his disease developed between 1990 and 2010.” Notably, he observed that the ECG “showed inferior T-wave inversion at baseline” and were unchanged from his review of ECGs dated in 1984, 1994, 2010 and 2015. However, in the absence of “new Q waves and ST changes that could accompany a myocardial infarction,” he could not use ECG changes to establish a timeline. Thus, he could not definitively answer the question. The Board notes that the definition of IHD is broad. See 38 C.F.R. § 3.309(e) (IHD includes, but is not limited to, the types of heart disease listed). Further, under Swain v. McDonald, 27 Vet. App. 219, 224 (2015), the “effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran’s disability] first manifested.” While the November 2017 VA examiner could not provide a definite answer as to whether the Veteran’s irregular heartbeat in 1994 was indicative of IHD, or the approximate date of onset of IHD, he did opine that IHD had onset between 1990 and 2010, the date it was first diagnosed. Resolving reasonable doubt in favor of the Veteran, and taking into consideration his numerous statements and February 2014 testimony that he had recurring chest pain starting in 1984 that his doctors told him were heart attacks, as well as the November 2017 VA examiner’s opinion that the Veteran’s IHD started sometime between 1990 and 2010, the Board finds that all of the facts support manifestation of IHD prior to the November 25, 1994 date of claim. See McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (in determining the date entitlement arose, when an original claim for benefits is pending, the Board must determine when a claimant’s disability manifested itself under all the “‘facts found” and “the date on which the evidence is submitted is irrelevant”). See also Jandreau v. Nicholson, 492 F.3d at 1377 (lay witnesses competent to report contemporaneous medical diagnosis). The evidence thus reflects that the Veteran’s IHD arose prior to his November 25, 1994 claim for compensation for this covered herbicide disease. As the effective date in this case, based on the above analysis of 38 C.F.R. § 3.816 and related regulations, is the later of the date of claim and the date the disability arose, the proper effective date is November 25, 1994, the date the claim was received by VA. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel