Citation Nr: 1808060 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-14 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for gout. 2. Entitlement to service connection for left rib pain and numbness. 3. Entitlement to service connection for bilateral glaucoma. 4. Entitlement to service connection for human immunodeficiency virus (HIV). 5. Entitlement to service connection for a kidney infection. 6. Entitlement to service connection for a rash on legs. 7. Entitlement to service connection for an enlarged prostate. 8. Entitlement to service connection for carpal tunnel, bilateral hands. 9. Entitlement to service connection for left hand numbness, to include peripheral neuropathy. 10. Entitlement to service connection for numbness and peripheral neuropathy of the bilateral feet, to include as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran, Veteran's Spouse ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned in December 2017. A transcript of the hearing is of record. The Board notes that in May 2017 correspondence from the Veteran he referenced extreme back pain and spine pain with sciatic nerve, high blood pressure and high cholesterol, Lupus, osteoporosis of the spine, and nightmares; as well as worsening of his service-connected hearing loss and Parkinson's. In September 2017 VA correspondence, the RO informed the Veteran that he would need to file a VA Form 21-526EZ in order to proceed with any additional claims. In December 2017, the Veteran filed a VA Form 21-526EZ for service connection for low back pain, an increased rating for Parkinson's disease, and an increased rating for hearing loss. The record suggests that the RO is in the process of adjudicating these matters. Therefore, a referral to the AOJ is not necessary. FINDINGS OF FACT 1. On the record at his December 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeals for service connection for gout, service connection for left rib pain and numbness, service connection for bilateral glaucoma, service connection for HIV, service connection for kidney infection, service connection for rash on the legs, service connection for an enlarged prostate, service connection for carpal tunnel of the bilateral hands, and service connection for left hand peripheral neuropathy. 2. The evidence is in relative equipoise that the Veteran's peripheral neuropathy of bilateral feet is related to his service, to include as due to exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for gout have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal for entitlement to service connection for left rib pain and numbness have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 3. The criteria for withdrawal of the appeal for entitlement to service connection for bilateral glaucoma have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 4. The criteria for withdrawal of the appeal for entitlement to service connection for HIV have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 5. The criteria for withdrawal of the appeal for entitlement to service connection for a kidney infection have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 6. The criteria for withdrawal of the appeal for entitlement to service connection for a rash on the legs have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 7. The criteria for withdrawal of the appeal for entitlement to service connection for an enlarged prostate have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 8. The criteria for withdrawal of the appeal for entitlement to service connection for carpal tunnel of the bilateral hands have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 9. The criteria for withdrawal of the appeal for entitlement to service connection for a left hand peripheral neuropathy disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 10. Service connection for peripheral neuropathy of both feet is warranted. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Appeals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. Except for appeals withdrawn on the record at hearings, the withdrawal must be in writing. 38 C.F.R. § 20.204. On the record at his December 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeals for service connection for gout, service connection for left rib pain and numbness, service connection for bilateral glaucoma, service connection for HIV, service connection for kidney infection, service connection for rash on the legs, service connection for an enlarged prostate, service connection for carpal tunnel of the bilateral hands, and service connection for left hand peripheral neuropathy. As the Veteran has withdrawn the appeals of those issues in accordance with 38 C.F.R. § 20.204, there remains no allegation of error of fact or law in regards to those issues for the Board to address. Accordingly, the Board does not have jurisdiction to review the appeals and they must be dismissed. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Any error in VA's duties to provide notice or assistance in this case is harmless, given the fully favorable determination for the claim on appeal. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: a present disability; incurrence or aggravation of a disease or injury in service; and 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (including other organic diseases of the nervous system) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for other organic diseases of the nervous system). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.307(d)(1), 3.309(e). Such diseases include, among others, early-onset peripheral neuropathy. Id. In general, for service connection to be granted for early onset peripheral neuropathy, it must have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military service. 38 C.F.R. § 3.309(e). The Board notes that 38 C.F.R. § 3.309(e) previously listed "acute and subacute peripheral neuropathy" as an enumerated disease and stated that this meant transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. Effective September 6, 2013, VA amended its adjudication regulations concerning presumptive service connection for disabilities associated with exposure to certain herbicide agents. See 78 Fed. Reg. 54,763, Disease Associated With Exposure to Certain Herbicide Agents: Peripheral Neuropathy (Sept. 6, 2013). Specifically, VA amended 38 C.F.R. §§ 3.307(a)(6)(ii) and 3.309(e) by replacing the term "acute and subacute peripheral neuropathy" with the term "early-onset peripheral neuropathy." VA also removed Note 2 to § 3.309(e), which stated that, in order for the presumption to apply, 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, early-onset peripheral neuropathy will still need to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicide agents in order to qualify for the presumption of service connection, but it no longer needs to be transient. These amendments apply to claims received by VA on or after September 6, 2013 and to claims pending before VA on that date. Id. The determination as to whether these requirements are met is based on analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin, 13 Vet. App. 1; 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. First, the Veteran has verified service in Vietnam and is presumed to have been exposed to herbicide agents during his service. Specifically, the Veteran's complete service personnel records reflect that the Veteran was in Vietnam from July 1966 to July 1967. Therefore, exposure to herbicide agents is conceded. The record also shows the Veteran has a currently diagnosed disability of peripheral neuropathy of the feet. VA treatment records of May 2008 reflect a diagnosis of peripheral neuropathy of the bilateral lower extremities. The Veteran reported bilateral lower extremity numbness, tingling, and losing his balance. The examiner noted that the Veteran was not diabetic and that diabetes mellitus does not run in the Veteran's family. A nerve conduction study was performed and reflected unattainable readings for the lower extremities, but electrodiagnostic testing revealed evidence of sensorimotor peripheral neuropathy which affected the legs. An August 2010 private neurology consultation treatment record reflects a diagnosis of peripheral neuropathy, related to Agent Orange by history. The Veteran reported tingling paresthesias in both feet. A nerve conduction study done at the same time reflected peripheral neuropathy in the left side. The examiner noted that the Veteran had no family history of neuropathy. In October 2014, a VA examiner evaluated the Veteran's file and completed an Agent Orange Peripheral Neuropathy Review Checklist. After reviewing the evidence of record, the VA examiner determined that there had been no early-onset peripheral neuropathy identified in the file and that per the Veteran's DD-214 and his last date of exposure, there was no evidence of early onset peripheral neuropathy during Vietnam service or within one year. The Veteran testified at a Board hearing in December 2017 that he first started noticing numbness in his toes right after he got back from service in 1969. The Veteran reported that he had been attributing the numbness to using steel-toed boots during the course of his civilian career and noted that he did not seek treatment because life was "going on." The Veteran testified that the tingling got much worse in 2006, when he started noticing numbness in both ankles, then in both legs, and which progressed to numbness up to the Veteran's knees. The Veteran stated that the numbness was so bad it contributed to his retirement in 2008 as he could no longer walk. The Veteran's wife also testified at the December 2017 Board hearing. She corroborated the Veteran's testimony, noting that the Veteran began to complain of numbness in his toes right after he got back from the service and right before or right after he started his civilian job. It is not in dispute that the Veteran now has peripheral neuropathy of the feet. It is also well-established in the record that he served in Vietnam, and is presumed to have been exposed to herbicide agents by virtue of such service. The critical question remaining to meet the criteria for presumptive service connection based on exposure to herbicide agents is whether there is competent evidence that peripheral neuropathy of the feet arose to a degree of 10 percent within one year of his date of last exposure to herbicide agents. Alternatively, to meet the chronic disease presumption as an organic disease of the nervous system, he must show that it arose to a degree of 10 percent within one year of his discharge from service. The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert, 1 Vet. App. 49. Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. The Board recognizes that the Veteran did not seek treatment for his peripheral neuropathy until 2006. However, he has been seeking VA treatment for his peripheral neuropathy consistently since 2007 and he competently reports continuous symptoms of tingling and numbness in the bilateral feet. He has also provided credible testimony that his symptoms of numbness and tingling in the feet began within a year of returning from service and have continued and increased in severity since that time. His testimony is also corroborated by his wife's credible testimony regarding her observation of him experiencing these symptoms. 38 C.F.R. §§ 3.307, 3.309(a). Since the Veteran has reported that the numbness and tingling did not start until he exited service in January 1969, which is more than one year after his last exposure to herbicide agents when he departed Vietnam in July 1967, he does not meet the criteria for service connection for early onset peripheral neuropathy of the bilateral feet based on exposure to herbicide agents. However, his and his spouse's credible testimony reflects that his symptoms of numbness and tingling arose to a level of mild incomplete paralysis, which is equivalent to a 10 percent rating under the pertinent criteria, within a year of his departure from service. 38 C.F.R. § 4.124a, Diagnostic Code 8521, 8621. The Board notes that aside from the VA examiner who completed the Agent Orange Peripheral Neuropathy Review Checklist in October 2014, there are no negative nexus opinions contained in the record. The Board places little probative weight on the October 2014 Agent Orange Peripheral Neuropathy Review Checklist as the examiner did not consider the Veteran's lay assertions that he has been experiencing numbness and tingling consistently in the feet since returning home from service. In addition, the VA examiner in May 2008 and the private examiner in August 2010 both indicated that the Veteran had no family history of neuropathy or contributing risk factors, such as diabetes mellitus, that would otherwise contribute to the disability. As the May 2008 and August 2010 examiners both evaluated the Veteran in person and reviewed the entire record, to include his lay statements and family history, the Board places greater probative weight on these reports. Therefore, in light of the evidence of record, including the Veteran and his wife's credible testimony, the Board finds that the evidence is at least in equipoise that the Veteran's peripheral neuropathy of the bilateral feet arose within the presumptive period for the chronic disease presumption of one year after service. Therefore, all reasonable doubt is resolved in favor of the Veteran and the Veteran's claim of entitlement to service connection for peripheral neuropathy of the bilateral feet as a chronic disease of an organic disease of the nervous system is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.307, 3.309(a). ORDER The appeal seeking service connection for gout is dismissed. The appeal seeking service connection for left rib pain and numbness is dismissed. The appeal seeking service connection for glaucoma, bilateral is dismissed. The appeal seeking service connection for HIV is dismissed. The appeal seeking service connection for a kidney infection is dismissed. The appeal seeking service connection for a rash on the legs is dismissed. The appeal seeking service connection for an enlarged prostate is dismissed. The appeal seeking service connection for carpal tunnel, bilateral hands is dismissed. The appeal seeking service connection for peripheral neuropathy of the left hand is dismissed. Entitlement to service connection for peripheral neuropathy of the bilateral feet is granted. ____________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs