Citation Nr: 18156490 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-39 263 DATE: December 11, 2018 ORDER Entitlement to service connection for left upper extremity (LUE) peripheral neuropathy, as due to exposure to herbicide agents is denied. Entitlement to service connection for right upper extremity (RUE) peripheral neuropathy, as due to exposure to herbicide agents is denied. Entitlement to service connection for left lower extremity (LLE) peripheral neuropathy, as due to exposure to herbicide agents is denied. Entitlement to service connection for right lower extremity (RLE) peripheral neuropathy, as due to exposure to herbicide agents is denied. FINDINGS OF FACT 1. Currently diagnosed LUE peripheral neuropathy was not first manifested on active duty and is not otherwise related to military service. 2. Currently diagnosed RUE peripheral neuropathy was not first manifested on active duty and is not otherwise related to military service. 3. Currently diagnosed LLE peripheral neuropathy was not first manifested on active duty and is not otherwise related to military service. 4. Currently diagnosed RLE peripheral neuropathy was not first manifested on active duty and is not otherwise related to military service. CONCLUSIONS OF LAW 1. The criteria for an award of LUE peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for an award of RUE peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for an award of LLE peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. The criteria for an award of RLE peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1967 to July 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 Rating Decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s representative alleges that the VA provided the Veteran with an inadequate examination in 2015. The representative contends that the testing was inadequate and that the examiner was not credible. The Board finds that VA satisfied its duty to assist when it provided a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions able to provide competent medical evidence. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (physician’s assistant was competent to perform examination). The Board may assume that a VA medical examiner is competent; Hilkert v. West, 12 Vet. App. 145, 151 (1999) (VA may presume the competence of an examiner, and an appellant bears the burden of persuasion to show that the Board’s reliance on an examiner’s opinion was in error). The Veteran has not offered competent and probative evidence in support of his assertion to persuade the Board that the June 2015 VA examiner was not competent to render the examination and findings sought. Thus, the Board finds the VA examination provided in June 2015 to be adequate and the examiner to be competent. Service Connection The Veteran claims entitlement to service connection for peripheral neuropathy of upper and lower extremities based on exposure to herbicides during service. He reports that he worked in a heavy equipment road construction unit in Vietnam. Generally, to establish service connection a Veteran 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, 1167 (Fed. Cir. 2004). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). A veteran who served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), to include early-onset peripheral neuropathy, if manifested to a compensable degree within one year of the last date a veteran was exposed to an herbicide agent during active service. 38 U.S.C, § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii). A veteran may also establish service connection based on exposure to Agent Orange with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). That is, a veteran may still establish service connection for the disease by (1) showing that the disease actually occurred in service; or (2) by submitting evidence of a nexus between the disease and his exposure to herbicides during military service. Combee, 34 F.3d at 1043-1044. Entitlement to Service Connection for Bilateral Upper and Lower Extremity Peripheral Neuropathy Because the analysis for each of the four claims is substantially similar, the Board will address them together for brevity. The Veteran has current diagnoses of idiopathic peripheral neuropathy in each of his upper and lower extremities. The existence of a present disability is conceded. There is no evidence that the Veteran was ever treated for any neurologic disabilities while in service, and the Veteran has not endorsed an injury or disease. However, he is presumed exposed to herbicide agents because he served in Vietnam from 1967 to 1968. The Board concedes that an in-service injury or disease is established. The question for the Board is whether the current disability is at least as likely as not related to the in-service injury, event, or disease. The Veteran received his first diagnosis of peripheral neuropathy of an extremity in November 2014, when the numbness in his left upper extremity was attributed to ulnar neuropathy. In a December 2014 VA neurology consultation, the Veteran indicated that he first noted numbness after a motor vehicle accident in 2011. Between 2014 and 2016, the Veteran was diagnosed with peripheral neuropathy in his three other extremities. The medical evidence clearly shows that the Veteran’s peripheral neuropathy did not manifest within one year of his separation from service in 1971. Therefore, presumptive service connection based on 38 C.F.R. § 3.309(e) is not warranted in this case. The Veteran contends that his peripheral neuropathy is related to his herbicide exposure while stationed in Vietnam. However, he is not competent to say his peripheral neuropathy is directly related to his exposure to herbicide agents. In a December 2014 VA neurology consult note, the neurologist found that the Veteran’s peripheral neuropathy was not related to Agent Orange exposure. He opined that it may be associated with a prediabetic condition. There is no evidence that the examiner is not competent or credible and his opinion is entitled to significant probative weight. There is no other evidence indicating that the Veteran’s peripheral neuropathy is directly related to herbicide agent exposure. Therefore, direct service connection is denied. The Board notes that peripheral neuropathy, as an organic disease of the nervous system, is a “chronic disease” under 38 C.F.R. § 3.309(a). As noted above, there is no evidence that peripheral neuropathy manifested within one year of separation from service. The Veteran has not argued that he has experienced continuous problems since service. All medical and lay evidence indicate that the Veteran’s peripheral neuropathy manifested after 2011. Therefore, service connection under 38 C.F.R. § 3.309(a) is not warranted. Without competent and credible evidence of an association between peripheral neuropathy of the bilateral upper and lower extremities and the Veteran’s active duty, service connection for peripheral neuropathy of the bilateral upper and lower extremities is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran’s claims for service connection for peripheral neuropathy of the bilateral upper and lower extremities. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt rule does not apply, and the Veteran’s claims of entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities are denied. See 38 U.S.C. § 5107. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDermott, Associate Counsel