Citation Nr: 19124702 Decision Date: 04/02/19 Archive Date: 04/02/19 DOCKET NO. 13-14 808 DATE: April 2, 2019 ORDER Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to Agent Orange exposure, is denied. FINDING OF FACT The Veteran’s peripheral neuropathy of the lower extremities is unrelated to the lower extremity symptoms he experienced in and after service. CONCLUSION OF LAW The criteria for entitlement to service connection for peripheral neuropathy of lower extremities are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 through March 1972. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied service connection for peripheral neuropathy of the bilateral lower extremities. In July 2016, the Veteran testified during a hearing before the undersigned; a transcript of that hearing is of record. In November 2016 and October 2017, the Board remanded the claim for additional development, specifically to obtain outstanding VA treatment records and a new medical opinion as to the etiology of the Veteran’s lower extremity peripheral neuropathy. For the reasons indicated in the discussion below, the RO complied with the Board’s remand instructions by obtaining such records and a medical opinion adequate to decide the claim. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Presumptive Service Connection Based on Agent Orange Exposure In the case of a veteran who served in the Republic of Vietnam during the Vietnam Era, which is true of the Veteran in this case, service connection can be presumed for certain specified diseases based on presumed exposure to herbicide agents in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the certain diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service. Acute and subacute peripheral neuropathy was one of the listed diseases. Effective September 6, 2013, VA amended its regulations regarding presumptive service connection for peripheral neuropathy associated with herbicide agent exposure. See Notice, 78 Fed. Reg. 173, 54763 -54766 (September 6, 2013). The amendment removed the requirement that an acute or subacute peripheral neuropathy appear within weeks or months after exposure and removed the requirement that the condition resolve within two years of the date of onset in order for the herbicide agent presumption to apply. To effectuate this change, VA replaced the terms “acute and subacute” and “transient” peripheral neuropathy with “early onset.” Under these amendments, early-onset peripheral neuropathy must still become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer must be transient. The Veteran claims entitlement to service connection for peripheral neuropathy as a result of his in-service exposure to herbicide agents, including Agent Orange. The Veteran’s service records indicate that he served in the Republic of Vietnam. Thus, Agent Orange exposure is presumed. However, as there is no evidence or argument that the Veteran has of acute, subacute, or early onset peripheral neuropathy, service connection on a presumptive basis may not be granted pursuant to 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307(a)(6), 3.309(e). 2. Direct Service Connection for Peripheral Neuropathy of the Lower Extremities Although the Veteran has not established entitlement to service connection on any of the presumptive bases noted above, he is not precluded from establishing service connection on a direct basis. See 38 U.S.C.A. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a Veteran from establishing service connection with proof of actual direct causation). Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). As to the first element for service connection, the Veteran has been diagnosed with peripheral neuropathy. Thus, the current disability element has been met. As to the in-service injury, the Veteran is presumed exposed to Agent Orange and the in-service injury element has therefore been met as well. The dispositive issue in this case is whether there is a nexus between the two. As noted in the Board’s prior remands, although there is no notation regarding peripheral neuropathy in the service treatment records (STRs), the Veteran stated that he experienced symptoms of burning, numbness, pain, and tingling in his lower extremities during and after service. He also indicated that he reported these symptoms during sick call and was treated with foot powder. In addition, the Veteran indicated that a private physician told him there is a positive correlation between Agent Orange and peripheral neuropathy. The Veteran is competent to report both his observations of symptoms and a contemporaneous medical diagnosis and opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also finds his testimony credible. The February 2017 VA examiner diagnosed peripheral neuropathy of the lower extremities and opined that it was not likely related to the Veteran’s military service. The Board found the opinion inadequate because the examiner did not specifically address the Agent Orange exposure and relied on the absence of a medical diagnosis of peripheral neuropathy during service and for many years thereafter. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). The Board will therefore not consider this opinion in its analysis. The physician who provided the February 2018 medical opinion recounted the relevant medical history in detail and concluded that the Veteran’s peripheral neuropathy was not likely related to his military service including Agent Orange exposure. In his rationale, he noted the lack of signs and symptoms of peripheral neuropathy in the STRs and the lack of early manifestation of peripheral neuropathy with several years of service as indicated by the 1976 VA examination report. The examiner noted that the Veteran was credible in reporting symptoms of burning, numbness, pain and tingling during and after service, which included service in Vietnam, but that it was less likely than not that the Veteran’s left leg pain was caused by or a result of peripheral neuropathy because neurological examination in July 1976 was normal and the examiner at that time had indicated that the pain was in the anterior tibial tubercle, which is unrelated to peripheral neuropathy. The Board finds that the VA physician’s February 2018 opinion is of significant probative weight because he explained the reasons for his conclusions based on an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The physician specifically considered the Veteran’s lay statements including those indicating possible symptoms of peripheral neuropathy in and shortly after service and explained why these symptoms including those noted on the July 1976 VA examination were not indicative of or early manifestations of the subsequently diagnosed peripheral neuropathy. While such symptoms, either in service or during the one-year presumptive period, can be the basis of a grant of service connection for a chronic disease if it is shown they were early manifestations of a subsequently diagnosed disease, here the only medical opinion on this question reflects that the symptoms were not early manifestations of the subsequently diagnosed disease. Cf. 38 C.F.R. § 3.307(c); Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease). The only evidence contrary to the probative February 2018 opinion are the Veteran’s statements. His statements as to his symptoms are competent and credible but were considered by the VA physician in his February 2018 opinion, which explained why they were not indicative of or early manifestations of the subsequently diagnosed peripheral neuropathy. As noted, the Veteran’s report of a positive opinion linking his peripheral neuropathy to his presumed Agent Orange exposure is competent evidence. However, the Veteran did not report the reasoning of this positive nexus opinion, and it is therefore of less probative weight than the negative opinion of the VA physician in February 2018. Nieves-Rodriguez, 22 Vet. App. at 304. In addition, to the extent that the Veteran himself has opined that there is a relationship between his current peripheral neuropathy and his military service including Agent Orange exposure, these are statements as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n.4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). The Veteran’s statements in this regard are therefore not competent. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for peripheral neuropathy. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. . Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laura A. Saracina, Law Clerk