Citation Nr: 1815109 Decision Date: 03/09/18 Archive Date: 03/19/18 DOCKET NO. 07-34 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for bilateral upper extremity peripheral neuropathy, to include as due to herbicide exposure. 2. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel INTRODUCTION The Veteran had active service from June 1969 to February 1971. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In January 2015, the Board denied the claims for service connection for peripheral neuropathy of the upper and lower extremities. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) and, in March 2016, the Court vacated the decision and remanded the matter to the Board. In July 2017, the Board remanded the matter for a VA examination and medical opinion per the Court decision. The matter has returned to the Board and the Board finds that there has been substantial compliance with the remand; accordingly, no further development is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents during service. 2. The Veteran's peripheral neuropathy of the bilateral upper and lower extremities did not manifest to a degree of 10 percent or more within one year after his last presumed in-service exposure in February 1971. 3. The Veteran's peripheral neuropathy of the bilateral upper and lower extremities manifested many years after separation from service and is otherwise unrelated to service, to include exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral upper extremity peripheral neuropathy, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for bilateral lower extremity peripheral neuropathy, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See id. The Board finds that VA's duties to notify and assist have been met. Except as discussed herein, the Veteran has not raised issues with the duties to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (applying Scott to the duty to assist). Moreover, no new evidence was received after the February 2018 Supplemental Statement of the Case; thus, all due process considerations have been satisfied. The pertinent regulations were provided to the Veteran in the Statement and Supplemental Statements of the Case and will not be repeated here. Service Connection for Peripheral Neuropathy The Veteran contends that his peripheral neuropathy began in service or is otherwise related to exposure to herbicide agents in service. Specifically, he contends that he first experienced numbness in his hands, legs, and feet in service and continued to experience similar symptoms after service. Initially, the Board finds that presumptive service connection based on exposure to herbicide agents is not warranted because the evidence does not show early-onset peripheral neuropathy that manifested to a degree of 10 percent within one year after the last date of exposure, February 1971. The service treatment records are negative for any findings, complaints, or diagnoses of peripheral neuropathy of either the upper or lower extremities. The Veteran's February 1971 separation examination shows that his upper extremities, lower extremities, and neurological systems were normal, and he reported that his physical condition was excellent. The Veteran underwent a VA musculoskeletal examination after separation in April 1971 and complained of difficulty bending and a sharp pain in his left side of his back, with tingling in the left leg, caused by running. The examiner noted that the Veteran had a clinical history of backache and old fractures of the lateral right ankle and lateral right big toe. An examination revealed negative straight leg raising test results, and the examiner diagnosed the Veteran with a history of a low back ache, healed right ankle fracture, healed right big toe fracture, and a healed ingrown toenail. Importantly, despite complaining of tingling in the left leg, peripheral neuropathy was not indicated. In a June 1971 statement, the Veteran complained of issues with his back, ankle, toe, skin, and food poisoning, but he did not complain about peripheral neuropathy of the upper or lower extremities or related symptoms. Moreover, VA medical records from October 1975 are negative for complaints, findings, or diagnoses of peripheral neuropathy of the lower or upper extremities. The Board thus finds that the Veteran is not entitled to presumptive service connection for early-onset peripheral neuropathy based on exposure to herbicide agents because the evidence does not show his peripheral neuropathy manifested in service or to a degree of 10 percent within one year after separation. The Board considered his contentions that his symptoms began in service and persisted thereafter, but finds that they are contradicted and outweighed by his VA claims history. The Veteran filed service connection claims for a strained back, a broken right ankle, a broken right big toe, food poisoning, and jungle rot in February 1971, breathing problems and a skin disorder in October 1975, and right ulnar neuropathy, claimed as a hand condition, in September 1996. Failure to file a claim is not necessarily indicative of the absence of symptomatology; however, as the Veteran took action regarding other claims, it is reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. Thus, the Veteran's inaction regarding his claims for peripheral neuropathy, when viewed in the context of his action regarding his other claims for compensation, may reasonably be interpreted as indicative that he did not experience the alleged symptomatology during that time. In sum, the Board finds that the evidence, including the service treatment records, separation examination, immediate post-service VA examination, and VA claims history, is against the claim for presumptive service connection. The Board further considered whether the Veteran is entitled to direct service connection for his peripheral neuropathy, but finds that he is not. In making this determination, the Board relied on his post-service medical records, lay statements, and VA and private medical opinions. Post-service medical records show that the Veteran was involved in an automobile accident in April 1982 and presented to a private hospital in August 1982 with complaints of persistent left neck, shoulder, and arm pain that radiated. The examining physician could find no definite sensory abnormalities and the impression was that the Veteran had prior mild to moderate cervical spondylosis that was aggravated by the accident. The Veteran was subsequently treated by Neurological Associates from September 1982 to June 1996 for residuals of his automobile accident injuries, including radiculopathy secondary to cervical spondylosis. These records are negative for complaints, findings, or diagnoses of peripheral neuropathy of the upper or lower extremities. Thus, despite regular treatment for a neurological disorder, the Veteran did not complain of or seek treatment for peripheral neuropathy, and that disorder was clearly linked to a cervical spine condition and a post-service automobile accident. Indeed, the claims file does not show evidence of peripheral neuropathy in the upper or lower extremities until the Veteran was involved in another automobile accident in January 2007. He subsequently sought treatment and, in March 2007, nerve conduction studies revealed evidence of moderate right ulnar neuropathy, a possible underlying sensorimotor polyneuropathy, and superimposed median neuropathy. The Veteran asked whether Agent Orange could be the cause of his polyneuropathy, to which his examiner documented "it is very possible if he was clearly exposed and if his symptoms started within a year after the exposure." He further noted that the Veteran answered affirmatively that his symptoms started within a year after the exposure. The Board notes that, as discussed above, the Veteran's statements are not persuasive that his symptoms began in service or within one year after the last day of exposure. He underwent further testing later that month for suspected peripheral neuropathy and the impression was an "abnormal study" because of electrophysiological findings that suggested the presence of a mild sensorimotor polyneuropathy that was predominantly axonal. In April 2007, the Veteran's treating neurologist noted that the axonal neuropathy differential diagnosis included metabolic or toxic exposure, but the Veteran's workup so far had been "basically negative." The Veteran was afforded a VA examination to assist in assessing his claim in March 2010. The Veteran reported that "since day one" after being discharged from service he had symptoms of weakness, coldness, heaviness, numbness, and tingling in his extremities. After an examination and thorough review of the claims file, including the March 2007 and April 2007 private neurological records, the examiner diagnosed the Veteran with bilateral upper and lower extremity sensorimotor polyneuropathy of unclear etiology, right ulnar neuropathy, and left cervical radiculopathy and opined that it was less likely as not that the Veteran's current conditions were the result of events which occurred during service. The examiner noted that the Veteran had other complicating factors which were contributing to the current symptomatology to include cervical radiculopathy in the left upper extremity and ulnar neuropathy in the right upper extremity as well as a history of bilateral median nerve neuropathy. The VA examiner further stated that there was no evidence that the current symptoms were consistent with EMG findings of polyneuropathy. Additionally, he concluded that there was no evidence of reported symptoms within two years of exposure. Specifically, there were no neurologic complaints made on examination in 1975 and no neurological findings were made at the time of the 1982 examination. The examiner concluded that the evidence failed to show that the Veteran's current symptomatology was a result or aggravation of events in service. In March 2011, the Veteran submitted two February 2011 letters from his former neurologist in which the neurologist opined that a toxic exposure to Agent Orange was "more than likely" the cause of the Veteran's symptoms. He rationalized that the Veteran has been diagnosed with idiopathic neuropathy and, despite extensive workups, the etiology was not discovered. He further stated that the evidence demonstrates the presence of sensorimotor polyneuropathy, predominantly axonal, which is more commonly seen in patients who have been exposed to toxins as well as conditions that are related to alterations in metabolism, such as chronic renal failure or liver disease. He concluded that the Veteran's Agent Orange exposure "definitely could be a differential diagnosis with regard to [his] neuropathy." A VA addendum medical opinion was obtained in June 2011 to assess the Veteran's claim in light of the private neurologist's opinion. The VA examiner affirmed the previous opinion that the Veteran had diagnoses of bilateral upper and lower extremity sensorimotor polyneuropathy, which has not been determined to be due to a toxic exposure. She further opined that those diagnoses and their corresponding signs and symptoms were not a result of the presumptive disease due to herbicide exposure of acute and subacute peripheral neuropathy since those were transient peripheral neuropathies that appeared within weeks or months of exposure to an herbicide agent and resolved within two years of the date of onset. In July 2013, the same examiner reaffirmed her previous opinions. She stated that numerous studies had assessed the relationship between herbicide exposures to the development of neurological disease and concluded that there was no definitive evidence that herbicide exposure caused chrome, ongoing, progressive peripheral neuropathy of the upper or lower extremities. She further stated that acute axonal polyneuropathy, such as that produced by toxic exposures, tends to worsen over two to three weeks, plateau, and then recover over months. Consequently, she wrote there was no evidence to support the Veteran's neuropathy was from toxic exposure because it did not resolve in months. Another addendum opinion was obtained in February 2014 from the same examiner, who, after another review of the Veteran's statements, medical records, and a physical examination conducted by her, reaffirmed her previous opinions for similar reasons. In May 2014, another addendum medical opinion was obtained, this time from a different VA examiner. She thoroughly reviewed the in-service and post-service records and concluded that the service records and immediate post-service records "show no documentation of symptoms consistent with peripheral neuropathy." She further stated that the evidence does not show peripheral neuropathy symptoms in the lower extremities until 2007. In making that determination, she noted that the in-service records only show complaints of left leg pain related to back pain and other purely musculoskeletal complaints in service. She further noted that the Veteran reported he was an extremely active physical education teacher, which would have been "quite challenging" for a person with symptomatic peripheral neuropathy. The examiner concurred with the previous examiner's assessment of the evidence regarding herbicide exposure and the development of peripheral neuropathy. She also reported that the Institute of Medicine 2012 Agent Orange update concluded that "in addition to evidence supporting an association for transient early-onset peripheral neuropathy, there is limited or suggestive evidence of an association between exposure to the COIs and early-onset peripheral neuropathy that may be persistent." The update further noted that "the present committee concludes that there is inadequate or insufficient evidence to determine whether there is an association between exposure to the COIs and delayed onset chronic neuropathy." Based on review of the available information, the May 2014 VA examiner opined that it was not at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed bilateral upper and/or lower extremity peripheral neuropathy was caused by or otherwise related to his service, to include, but not limited to, presumed in-service exposure to an herbicidal agent. The Veteran underwent another VA peripheral nerves condition examination in August 2017 with a new VA examiner. After examination and review of the claims file, the examiner opined that the current bilateral upper and lower extremity neuropathy is less likely than not caused by or otherwise related to service, including exposure to herbicide agents. In support of her conclusion, she noted that neuropathy etiologies are extensive and remain undetermined 50 percent of the time. Importantly, she wrote that although "herbicide exposure during service could produce this clinical picture, this is clearly not the case" for this Veteran because the "clinical course of neuropathy with herbicide exposure is that of onset of symptoms immediately or within the first few days of exposure." She continued to state that when the exposure has stopped, "symptoms stabilize and then gradually improve." She concluded that there is "no medical evidence for symptoms of a neuropathy while in service or within one year after separation" for the Veteran. In consideration of the entirety of the evidence, the Board finds that the evidence weighs against service connection. The Board accorded great probative value to the March 2010, June 2011, July 2013, February 2014, May 2014, and August 2017 VA medical opinions for several reasons. First, they were based on a thorough review of the Veteran's claims file, including his service treatment records, post-service medical records, lay assertions, and other medical opinions in the claims file. Review of the claims file is critical in this case because the Veteran's statements to medical providers that he had symptoms of neuropathy during and immediately after service are contradicted by his actual medical records. Second, the examiners were consistent in their findings and with the facts of the case. Third, they provided definitive conclusions with thorough rationales and utilized the specific facts of this case and relevant medical literature to support their opinions. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The Board considered the February 2011 private medical opinion, but did not accord it significant probative value. First, the private neurologist did not discuss the significant period of time between separation from service and diagnosis. This runs counter to all the medical principles cited by the other medical professionals as to the presentation of neuropathy symptoms with respect to exposure to herbicides. Second, the opinion lacks a definitive conclusion that is required for a medical opinion to be considered probative. See Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). Instead, the private neurologist determined that exposure to herbicide agents "definitely could be a differential diagnosis with regard to [the Veteran's] neuropathy." Third, because the neurologist did not discuss any review of the Veteran's medical records, it is clear he did not have access to all the relevant facts in this Veteran's medical history. Accordingly, the Board found the VA medical opinions greatly outweighed the private opinion. The Veteran has contested the validity of these opinions because, as he argues, the examiners did not discuss that he had no reflexes in his lower extremities at separation. The Board finds that it is clear the examiners thoroughly reviewed the service treatment records, including the separation examination, based on their use of direct quotes from the separation report. Moreover, the Board notes that the lack of reflexes was discovered in his post-service examination from April 1971, which was also thoroughly reviewed by examiners. Finally, the April 1971 examiner determined that his lack of reflexes was "probably of no significance." The Veteran has also generally contested the validity of the opinions because they conflict with his private neurologist's opinion and the Veteran's belief that his peripheral neuropathy stems from exposure to herbicide agents. The Board has carefully weighed the VA medical opinions and private neurologist's opinion, and found that the VA medical opinions are more probative because they are consistent with each other and the facts of the case and they are supported by current medical literature and the other evidence in the file. Furthermore, the Board finds that the Veteran's contentions lack probative value. As a lay person, however, the Veteran is not competent to diagnose a medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. Moreover, the Veteran's contention is particularly unreliable in light of the significant period of time between separation and diagnosis. To the extent the Veteran contends he experienced symptoms in service and thereafter, the Board finds that these contentions are not credible. In making this determination, the Board relied on his service treatment records, which are devoid of complaints relevant to peripheral neuropathy, his separation examination, in which he reported he was in excellent condition, his immediate post-service musculoskeletal VA examination, which did not document relevant symptoms or complaints, post-service neurological records, which do not document relevant complaints or diagnoses, and the Veteran's VA claims history, which documents numerous claims filings from separation to 2007, when he filed the present claims. In short, the Veteran sought treatment and compensation for many conditions immediately after service, and in the decades thereafter, but did not seek treatment or compensation for peripheral neuropathy until 2007. Indeed, he did not contend he has experienced these symptoms since service until after he filed his claim for service connection. The Board finds that evidence outlined above weighs heavily against his contentions that he has experienced symptoms since service and thus finds that his statements are not credible. The Board therefore finds that the lay statements are not probative on the question of the relationship between peripheral neuropathy and active service, to include herbicide exposure. In consideration of the competent and credible evidence, the Board finds that the preponderance of the evidence weighs against the claims for service connection for peripheral neuropathy of the upper and lower extremities, and the claims must be denied. ORDER Service connection for bilateral upper extremity peripheral neuropathy, to include as due to herbicide exposure, is denied. Service connection for bilateral lower extremity peripheral neuropathy, to include as due to herbicide exposure, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs