Citation Nr: 1808079 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-20 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for sensorimotor peripheral neuropathy of the upper extremities, to include as secondary to herbicide exposure and/or diabetes mellitus. 2. Entitlement to service connection for sensorimotor peripheral neuropathy of the lower extremities, to include as secondary to herbicide exposure and/or diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Michael J. O'Connor, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to December 1977, with service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon (RO) (Agency of Original Jurisdiction (AOJ)). In November 2016, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Board observes that a November 1986 AOJ rating decision denied service connection for neuropathy on the basis that the Veteran manifested Charcot-Marie-Tooth Disease (CMT) which was not shown to have been incurred in service. The Veteran was provided notice of this decision and his appellate rights by letter dated November 12, 1986, but he did not appeal this decision or submit new and material evidence within one year of the notice of decision. That decision, therefore, is final. 38 U.S.C. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1986). The Veteran has subsequently submitted lay testimony concerning the onset of neuropathy symptoms in service which was not previously considered by the AOJ. The Board finds that such evidence is both new and material and, thus, the Board may consider the claim on the merits. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(b) (2017); Shade v. Shinseki, 24 Vet. App. 110, 113 (2010). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action, on his part, is required. REMAND The Veteran essentially contends that he has peripheral neuropathy, to include as due to Agent Orange exposure in service in Vietnam or high voltage electrocution during service. The Veteran also disputes whether he, in fact, manifests CMT. A January 2012 VA opinion notes that the Veteran manifests CMT which is a hereditary condition first diagnosed in 1986. The examiner also opined that the Veteran's sensory motor neuropathy had not been aggravated by service-connected type II diabetes mellitus. Congenital or developmental defects are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9; O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014); Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). However, the sole fact that a disorder is congenital or hereditary in origin does not preclude service connection. See O'Bryan, 771 F.3d at 1380; Quirin, 22 Vet. App. at 395; VAOGC 8-88 (Sept. 1988), reissued as VAOPGCPREC 67-90 (July 18, 1990) (noting that diseases of hereditary origin can be incurred or aggravated in service if their symptomatology did not manifest itself until after entry on duty). Only congenital "defects," as opposed to congenital "diseases," are excluded from the types of disabilities that may be service connected, as congenital defects are not considered diseases or injuries under VA law. O'Bryan, 771 F.3d at 1380; VAOPGCPREC 82-90 (July 1990) (holding that "service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin"). Congenital defects are by definition static in nature. O'Bryan, 771 F.3d at 1380 (observing that a hereditary condition that cannot change is a "defect" and is not subject to the presumption of soundness under 38 U.S.C. § 1111); VAOPGCPREC 67-90 ("congenital or developmental defects are normally static conditions which are incapable of improvement or deterioration"). By contrast, congenital diseases are progressive in nature, and as such are capable of improvement or deterioration. O'Bryan, 771 F.3d at 1380 ("[A] congenital or developmental condition that is progressive in nature-that can worsen over time-is a disease rather than a defect," even if it ceases to progress); VAOPGCPREC 67-90 ("A disease . . . even one which is hereditary in origin, is usually capable of improvement or deterioration"). Thus, the litmus test for distinguishing a congenital defect from a congenital disease is whether the disorder in question is capable of changing. See id. Here, the diagnosed CMT has been medically referred to as a disease which, by the record, is shown to have been progressively worsening over the course of time. The Board requires further medical opinion as to whether the Veteran in fact manifests CMT and, if so, whether this disorder first manifested in service, or was caused, initiated or aggravated beyond the normal progress of the disorder by the high voltage electrocution event in service or herbicide exposure in Vietnam. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate any outstanding medical treatment records with the claims file. 2. Schedule the Veteran for an examination to determine the nature and etiology of his claimed peripheral neuropathy. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must reflect that the claims file was reviewed in conjunction with the examination. The examiner should first clarify whether the Veteran, in fact, manifests Charcot-Marie-Tooth Disease (CMT) with consideration of the Veteran's argument that his presenting symptoms were not consistent with such a diagnosis. If CMT is diagnosed, provide opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder first manifested in service OR was caused, initiated or aggravated beyond the normal progress of the disorder by the high voltage electrocution event in service or herbicide exposure in Vietnam? Clarify whether the Veteran manifests neuropathy symptoms independent of CMT and, if so, whether such disorder first manifested in service OR was caused, initiated or aggravated beyond the normal progress of the disorder by the high voltage electrocution event in service or herbicide exposure in Vietnam OR has been caused or aggravated beyond the normal progress of the disorder by service-connnected type II diabetes mellitus? In providing this opinion, the examiner is requested to consider the following: * a July 1976 service treatment record wherein the Veteran reported numbness of the arms and face after high voltage electrocution; * an August 1978 service treatment record wherein the Veteran described continued right-sided numbness as well as generalized malaise; * an October 1977 separation examination wherein the Veteran denied neuritis and foot trouble, and physical examination reflected a normal neurologic and extremity status; * private medical records dating to July 1978 (received on September 11, 1986) with a May 1981 record describing intermittent right finger numbness, a February 1982 record describing toe numbess of 2 months duration; a March 1982 evaluation for numbness of his hands, toes and feet for several months initially assessed as carpal tunnel syndrome and neuritc symptoms from a peripheral neuropathy in the lower extremities of undetermined etiology; a March 1982 nerve conduction velocity study; an October 1984 assessment of axonal type neuropathy which had been present since 1982; * an August 1986 VA hospitalization record (received on September 8, 1986) describing the Veteran as manifesting a progressive numbness of the feet in 1978 developing into foot weakness in 1981, and diagnosing sensory motor polyneuropathy consistent with Charcot-Marie-Tooth, Type II; * current private treatment records recording a diagnosis of Charcot-Marie-Tooth Disease; * the results from a February 2007 electromyography interpreted as showing generalized sensorimotor polyneuropathy, very severe in degree electrically, characterized by axon loss greater than demyelination and predominantly chronic in appearance with moderate ongoing axon loss supportive of a diagnosis of CMT, although indeterminate for type given the severity and chronicity of findings; * the opinion of a VA examiner in January 2012 that the Veteran manifests a sensory motor neuropathy of all extremities due to CMT, and not aggravated by service-connected diabetes mellitus type II; and * the Veteran's December 2016 argument that his symptoms are more closely related to peripheral neuropathy rather than CMT based on the initial presentation of his symptoms with medical treatise references. The examiner must include a thorough rationale for any conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).