Citation Nr: 1809312 Decision Date: 02/16/18 Archive Date: 02/27/18 DOCKET NO. 11-04 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a right lower extremity neurological disability, to include mononeuritis multiplex. 2. Entitlement to service connection for a left lower extremity neurological disability, to include mononeuritis multiplex. 3. Entitlement to service connection for a right upper extremity neurological disability, to include mononeuritis multiplex. 4. Entitlement to service connection for a left upper extremity neurological disability, to include mononeuritis multiplex. 5. Entitlement to specially adapted housing or a special home adaptation grant. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to April 1968. His decorations include the Vietnam Service Medal with Bronze Star and Purple Heart with Gold Star. This appeal is before the Board of Veterans' Appeals (Board) from July 2010 and January 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The Veteran does not have any neurological disability affecting any extremity that is the result of in-service Agent Orange exposure, was caused or aggravated by a service-connected disability, or is related to service in any other way. 2. The Veteran does not have any service-connected disability rated as permanent and total that is manifested by loss of use of any extremity, deep burns, inhalation injury, or blindness. CONCLUSIONS OF LAW 1. The criteria for service connection for a right lower extremity neurological disability, to include mononeuritis multiplex, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(e), 3.310 (2017). 2. The criteria for service connection for a left lower extremity neurological disability, to include mononeuritis multiplex, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(e), 3.310 (2017). 3. The criteria for service connection for a right upper extremity neurological disability, to include mononeuritis multiplex, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(e), 3.310 (2017). 4. The criteria for service connection for a left upper extremity neurological disability, to include mononeuritis multiplex, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(e), 3.310 (2017). 5. The criteria for a special home adaptation grant have not been met. 38 U.S.C. §§ 2101, 5107 (2012); 38 C.F.R. §§ 3.809, 3.809a (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) and 1116 and 38 C.F.R. § 3.303. Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, as reflected in a September 2010 statement and his August 2012 testimony at a Decision Review Officer (DRO) hearing, the Veteran asserts that his neurological disabilities of the extremities, to include mononeuritis multiplex, is the result of in-service Agent Orange exposure. The Veteran served on active duty from January 1966 to April 1968, which included combat service in the Republic of Vietnam. He is therefore presumed to have been exposed to Agent Orange during service. VA and private treatment records reflect that, beginning in 2000, the Veteran has experienced progressive asymmetric weakness and numbness of the extremities. Beginning in March 2008, on the basis of electromyography (EMG) and other examination findings, he was diagnosed with multifocal motor neuropathy (MMN) of unknown etiology, and was given a subsequent diagnosis of mononeuritis multiplex; however, as noted in a June 2008 VA note, such disease presented atypically. The disease has resulted in significant disability involving motor neuronopathy including difficulties with balance and gait requiring braces and other assistance devices for walking short distances, minimal use of both hands with very limited gripping function, and significant muscle weakness and atrophy in the arms and legs. The Veteran has received intravenous immunoglobulin (IVIg) for his disease, to which he has been noted to respond well. In September 2011, a VA examiner gave the opinion that the Veteran's diagnosed mononeuritis multiplex was less likely than not a result of Agent Orange exposure. The examiner reasoned that the Veteran was diagnosed with mononeuritis multiplex 40 years after his military discharge, he first noticed a peripheral nerve condition 32 years after his discharge, and mononeuritis multiplex is not a recognized condition presumptively related to Agent Orange exposure. In a September 2012 letter, the Veteran's private neurologist, Dr. M.M., stated that reports in the literature suggest that Agent Orange used during the Vietnam War may have caused peripheral neuropathy in some veterans and, as with other conditions presumed to be related to Agent Orange exposure, such as diabetes and prostate cancer, such disorders are often diagnosed years after exposure. She also stated that the Veteran had no other medical condition to cause his neuropathy and no family history of any type of neurologic disorders, and that he had not been exposed to any types of chemicals or adverse agents during civilian life. However, Dr. M.M. did not clearly express an opinion that the Veteran's specific neurological disability was at least as likely as not related to his in-service Agent Orange exposure, given the specific nature of his disease and circumstances of his case. In an April 2013 letter, the Veteran's nurse practitioner, C.S., stated that peripheral neuropathy can arise from many causes including toxin exposure, which could certainly precipitate the onset of the condition as soon as it occurs, or as a progressive process, thus leading to delayed-onset peripheral neuropathy. She noted that the Veteran did not drink alcohol or have diabetes, but was potentially exposed to toxins while in the military. She also noted that, according to the "Veterans and Agent Orange" report of VA and the National Academy of Sciences ("VAO"), "[n]eurological disorders due to toxicant exposure may result in either immediate or delayed dysfunction of any component of the nervous system; immediate effects of toxicants may involve all aspects of the nervous system, whereas delayed effects are likely to produce more focal problems." She further stated that, based on this article, and the language used, the VAO suggested that Agent Orange could cause delayed-onset peripheral neuropathy. She opined that, based on the documentation provided, an internet search of the VA guidelines and regulations, and numerous articles regarding herbicides and peripheral neuropathy, both acute and delayed response, one could conclude that the Veteran's condition was at least as likely as not a result of his in-service Agent Orange exposure. However, C.S. did not explain how the Veteran's specific neurological disability was related to his in-service Agent Orange exposure, given the specific nature of his disease and circumstances of his case. The Veteran also submitted an October 2012 letter from a Veterans advocacy group criticizing the VAO for recommending the allowance of presumptive service-connected benefits to Veterans who suffer from early-onset peripheral neuropathy, but not delayed-onset peripheral neuropathy. According to the letter, the VAO had unduly discounted the latent nature of peripheral neuropathy diseases, as well as studies reflecting a connection between Agent Orange and peripheral neuropathy. The Veteran furthermore submitted a report dated May 5, 1990, entitled "Report to Secretary of the Department of Veterans Affairs on the Association Between Adverse Health Effects and Exposure to Agent Orange" from an Admiral E.R.Z. The report expresses the opinion that there is adequate scientific evidence to conclude that there is at least as likely as not a relationship between exposure to Agent Orange and numerous health problems, including "neurological defects," and criticizes the Veterans' Advisory Committee on Environmental Hazards' review and assessment of the scientific evidence related to the association of adverse health effects and exposure to Agent Orange. In June 2016 and November 2017, a Veterans Health Administration (VHA) neurologist and neuromuscular specialist reviewed the entire record, including the evidence discussed above, and provided opinions regarding the Veteran's claim. He opined that the Veteran carried the diagnosis of MMN with conduction block, and that neither MMN nor any other disability manifested by peripheral neuropathy is the result of his in-service exposure to Agent Orange. In the June 2016 opinion, the VHA neurologist noted that the relationship between Agent Orange and certain diseases was a well-reviewed topic, and referenced the VAO report. He summarized the relevant portion of the report as follows: ... To summarize, there is some biological plausibility from rat studies that agent orange constituents could cause a neuropathy. However, all epidemiological studies and data we have from veterans is underwhelming and that frequently there is confounding of diabetes mellitus (DM) and alcohol in cases with neuropathy. They conclude, and I agree, that there is no clear association with "delayed onset peripheral neuropathy" and agent orange exposure from the available data. Outside of this source and review, I looked at the rest of the available recent literature of which there really is none... Moreover, according to the VHA neurologist, the Veteran carried a diagnosis of MMN that began at 53 years of age, rather than mononeuritis multiplex. MMN is a well-known entity and its pathophysiology was fairly well-established. MMN is an immune mediated disorder, the culprit of which is immune dysregulation and not a toxic exposure. Thus, in the Veteran's case, the odds of remote exposure being related were even less likely, as MMN was a multifocal autoimmune process that did not have a typical pattern of a toxic-induced neuropathy. In the November 2017 opinion, the VHA neurologist explained, in greater detail, his reasons for concluding that the Veteran's disease is MMN. Such reasons included the Veteran's specific findings on diagnostic testing and physical examination, including a motor predominant clinical picture, fasciculations, and preservation (if not enhancement) of deep tendon reflexes; the slow progression of weakness over the years, characteristic of MMN but atypical of mononeuritis multiplex; and the improvement with IVIg, which is the treatment of choice for MMN and not as beneficial to mononeuritis multiplex. The examiner noted that, alternatively, the Veteran might have some form of motor neuron disease, but that in either case, for either MMN - an immune mediated condition - or motor neuron disease, there was no link to Agent Orange per the literature review. In this case, the Board finds the opinions of the VHA neurologist to be the most probative on the nature of the Veteran's neurological disabilities affecting his extremities, and on the question of whether any such disability is related to his in-service Agent Orange exposure. Initially, the VHA neurologist noted the documented epidemiological studies and data from Veterans concluding that there is no clear association with "delayed onset peripheral neuropathy" generally and Agent Orange exposure; he furthermore expressed his own agreement with such conclusion, noting that such data were underwhelming and problematic in drawing any connection. Moreover, the VHA neurologist expressed the opinion that the Veteran's specific disease was MMN, a well-known entity with fairly well-established pathophysiology, and a disease that was not known to be toxin-related and that did not have a typical pattern of a toxic-induced neuropathy. The VHA neurologist provided very detailed explanation for this opinion based on a review of the entire clinical record, including diagnostic findings and the nature, predominant symptomatology, and progression of the Veteran's disease, as well as his response to IVIg treatment. There is no equally probative evidence in favor of the Veteran's service connection claim. Again, Dr. M.M. stated that the literature suggests that Agent Orange may have caused peripheral neuropathy in some veterans; C.S. stated that toxin exposure could result in peripheral neuropathy, including delayed-onset peripheral neuropathy, and that one could thus conclude that the Veteran's condition was at least as likely as not a result of his in-service Agent Orange exposure. However, while asserting that certain instances of peripheral neuropathy generally have been found to be related to Agent Orange, neither Dr. M.M. nor C.S. clearly expressed the opinion that, or explained how, the Veteran's specific neurological disability, given its specific nature and circumstances, was at least as likely as not related to his in-service Agent Orange exposure. In this regard, again, the VHA neurologist specifically explained why the Veteran's neurological disability, specifically, was not one linked to toxins and would be very unlikely to be related to Agent Orange. Also, while C.S.'s opinion was largely based on her determination that the VAO suggested that Agent Orange could cause delayed-onset peripheral neuropathy, the VAO's conclusion - as noted by the VHA neurologist - was that that there is no clear association with "delayed onset peripheral neuropathy" and Agent Orange exposure from the available data. In this regard, VA's list of diseases presumed to be related to Agent Orange, which is based on the medical evidence contained in the VAO, includes "early-onset peripheral neuropathy," but not delayed onset peripheral neuropathy. In making her opinion, C.S. relied on medical literature that weighed more heavily against her opinion than in favor of it. The Board notes the October 2012 letter from a Veterans advocacy group criticizing the VAO for its position on the relationship between Agent Orange and delayed-onset neuropathy, as well as the May 5, 1990, "Report to Secretary of the Department of Veterans Affairs on the Association Between Adverse Health Effects and Exposure to Agent Orange" from an Admiral E.R.Z. However, each of these simply disputes the conclusions of the medical studies on which VA has relied in establishing its regulations regarding diseases presumed to be linked to Agent Orange exposure. This evidence was reviewed by the VHA neurologist who nonetheless provided his extensively reasoned opinion against the Veteran's claim, discussed above. Also, in contrast to the opinions of the VHA neurologist, none of this evidence addresses the Veteran's particular case and specific disease. The Board notes the Veteran's assertions, including in an April 2012 statement, that his neurological disability is an acute and subacute peripheral neuropathy, and thus warrants presumptive service connection for Agent Orange-exposed Veterans under 38 C.F.R. §§ 3.307 and 3.309(e). In this regard, at the time of this statement, during the pendency of the Veteran's claim, rather than "early-onset peripheral neuropathy," "acute and subacute peripheral neuropathy" was presumed to be Agent Orange-related. See 38 C.F.R. § 3.309(e) (2011). However, for purposes of that regulation, the term "acute and subacute peripheral neuropathy" 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." Id. The record does not reflect, and the Veteran has not asserted, in any way that his neurological disability meets that definition; the Veteran's disability has repeatedly been noted to have begun decades after his period of service and to have persisted many years until the present. The Board also notes the Veteran's representative's arguments in a January 2018 brief. The Veteran's representative noted that the Veteran is service-connected for PTSD, which is severe and has existed for a long time; the brief contains a reference to "medical literature posted by VA" that "shows PTSD is linked to autoimmune problems." The brief appears to reference an online article published by VA indicating that among "Veterans of Iraq and Afghanistan, those with PTSD were more likely to have autoimmune disorders such as rheumatoid arthritis, multiple sclerosis, lupus, inflammation of the thyroid, and inflammatory bowel disease." However, the same article points out that "the study doesn't show that PTSD causes autoimmune disease-only that there's a relationship"; and that "[t]he reasons for the linkage are unclear," and "could be due to health habits that are more common in those with PTSD, such as smoking, drinking, poor diet, or impaired sleep," or "that pre-existing genetic or environmental risk factors might lay the groundwork for both conditions." PTSD Tied to Autoimmune Disorders, Research News from the U.S. Department of Veterans Affairs, (Oct. 21, 2014), https://www.research.va.gov/currents/fall2014/fall2014-11.cfm. Moreover, nothing in the article, or identified by the Veteran or his representative, relates MMN, specifically, to PTSD. Thus, the Board does not find the general information contained in the article sufficient to indicate that the Veteran's current neurological disability may be associated with PTSD. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran's representative's January 2018 brief also noted an article linking peripheral polyneuropathies generally to herbicide exposure. However, the medical literature regarding links between neuropathy and Agent Orange exposure has been noted and discussed above; for the reasons discussed above, the Board finds that the opinions of the VHA neurologist-who reviewed and discussed such pertinent literature in the context of the Veteran's specific case-to carry more probative weight. Therefore, a preponderance of the evidence is against a finding that any neurological disability affecting an extremity is the result of in-service Agent Orange exposure, was caused or aggravated by a service-connected disability, or is related to service in any other way. Accordingly, service connection for right and left lower and upper extremity neurological disabilities, to include mononeuritis multiplex, must be denied. II. Specially Adapted Housing or Special Home Adaptation Grant Requirements for a certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C. 2101(a) include a service-connected disability rated as permanent and total, which must be due to: (1) The loss or loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (2) Blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) The loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (4) The loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (5) The loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or (6) Full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. 38 C.F.R. § 3.309. Requirements for a certificate of eligibility for assistance in acquiring necessary special home adaptations or assistance in acquiring a residence already adapted with necessary special features, under 38 U.S.C. 2101(b) or 2101A(a), include having a service-connected disability rated as permanently and totally disabling that (i) Includes the anatomical loss or loss of use of both hands; (ii) Is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or of at least one extremity and the trunk; (iii) Is due to full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk; or (iv) Is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). 38 C.F.R. § 3.309a. The Veteran is service-connected for PTSD, rated 100 percent, and for fragment wounds of the right leg and left hand, each rated noncompensable (0 percent). There is no indication in the record, and the Veteran has not asserted, that his PTSD is manifested by any of the functional physical limitations required for specially adapted housing or special home adaptation grant under 38 C.F.R. §§ 3.809 or 3.809a. Rather, as reflected in statements given by the Veteran in September 2010 and December 2010, and during his August 2012 DRO hearing, by his representative in its January 2018 brief, and through various statements given by the Veteran's medical providers, his assertion has been that his claimed neurological disabilities of the extremities have met the criteria under these regulations. However, as service connection is being denied for these claimed neurological disabilities, specially adapted housing or special home adaptation grant under 38 C.F.R. §§ 3.809 or 3.809a is not warranted. The Veteran's claim must therefore be denied. ORDER Service connection for a right lower extremity neurological disability, to include mononeuritis multiplex, is denied. Service connection for a left lower extremity neurological disability, to include mononeuritis multiplex, is denied. Service connection for a right upper extremity neurological disability, to include mononeuritis multiplex, is denied. Service connection for a left upper extremity neurological disability, to include mononeuritis multiplex, is denied. Specially adapted housing or a special home adaptation grant is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs