Citation Nr: 20002175 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 18-34 963 DATE: January 9, 2020 ORDER Entitlement to service connection for peripheral nerve damage, right lower extremity (to include burning sensation, tingling, and numbness of feet, ankles, and legs), and to include as due to exposure to herbicides, is denied. Entitlement to service connection for peripheral nerve damage, left lower extremity (to include burning sensation, tingling, and numbness of feet, ankles, and legs), and to include as due to exposure to herbicides, is denied. FINDINGS OF FACT 1. The preponderance of the competent evidence is against a finding that the Veteran’s peripheral neuropathy, right lower extremity, is etiologically related to service, to include exposure to herbicides. 2. The preponderance of the competent evidence is against a finding that the Veteran’s peripheral neuropathy, left lower extremity, is etiologically related to service, to include exposure to herbicides. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral nerve damage, right lower extremity, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for peripheral nerve damage, left lower extremity, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from March 1967 to March 1969. These issues come before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. The transcript is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: (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 (Fed. Cir. 2004). Further, VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era (beginning on January 9, 1962 and ending on May 7, 1975) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307. In such circumstances, service connection may be granted on a presumptive basis for any disease listed in 38 C.F.R. § 3.309(e). “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Recently, in Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019), the en banc Federal Circuit held that 38 U.S.C. § 1116 unambiguously expressed Congress’ intent that those who served in the 12-nautical-mile territorial sea of the “Republic of Vietnam” are entitled to the presumption of herbicide exposure. Early onset peripheral neuropathy is one of the diseases associated with herbicide exposure for purposes of the presumption. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309. However, for the presumption to apply, peripheral neuropathy must become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicide. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, service connection may be established with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167-68 (1999) (providing that the provisions set forth in Combee are equally applicable in cases involving claimed Agent Orange exposure). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for peripheral nerve damage, right lower extremity (to include burning sensation, tingling, and numbness of feet, ankles, and legs) and to include as due to exposure to herbicides 2. Entitlement to service connection for peripheral nerve damage, left lower extremity (to include burning sensation, tingling, and numbness of feet, ankles, and legs) and to include as due to exposure to herbicides The Veteran claims that his peripheral neuropathy of the bilateral lower extremities is the result of his service. He asserts that he was exposed to herbicides while serving in Vietnam. See November 2017 correspondence. His claim was received by VA in March 2016. The issue in this case is whether the Veteran’s peripheral neuropathy of the bilateral lower extremities was incurred in service. For the reasons set forth below, the Board finds that service connection for peripheral neuropathy of the bilateral lower extremities has not been demonstrated. As to a current disability, August 2013 and December 2013 VA clinical records reveal complaints of burning sensation in the abdomen, chest, tingling, and numbing down to the legs. April 2016 private clinical records indicate complaints of chronic paresthesias of the legs and feet with a diagnosis of peripheral neuropathy. November 2017 private clinical records include diagnoses of idiopathic peripheral neuropathy. As to the incurrence of the Veteran’s peripheral neuropathy, the Veteran most recently testified at his Board hearing that his doctor told him that his leg problems were due to his diabetes. See November 2019 Board hearing transcript. He testified that the nerve problems with his legs did not start until after he left military service and did not begin during service. Id. He testified that he started having problems with his feet within years after service. Id. A review of the Veteran’s personnel record reveals that he served in Vietnam from July 1967 to July 1968. See April 1995 military personnel record. Upon review of the service treatment records, a September 1964 examination indicates normal clinical evaluation for the lower extremities. The Veteran’s March 1967 entrance examination reveals normal clinical evaluation for the lower extremities, the Veteran noted leg cramps, and a physician’s summary notation noted “mild leg cramps.” The February 1969 separation examination also reveals normal clinical evaluation for the lower extremities, the Veteran noted leg cramps, and a physician’s summary notation noted “normal athletic cramps.” The evidence of record demonstrates that the Veteran served on the landmass of Vietnam during the recognized dates of the Vietnam War and the Veteran suffers from peripheral neuropathy. In order for the presumption that he was exposed to herbicides to apply, the evidence must show that his peripheral neuropathy of the became manifest to a degree of 10 percent or more within one year after the date of the last exposure to herbicides. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Here, a peripheral nerve condition is not shown in service nor is there competent evidence of peripheral neuropathy to a compensable degree within the initial post separation year. The service treatment records are silent as to complaints of, diagnosis of or treatment for peripheral neuropathy. There was a complaint of leg cramps but the health care professional who examined the Veteran indicated that the cramps in the legs were “normal athletic cramps.” The first indication that the Veteran was suffering from symptoms related to his peripheral neuropathy is in August 1994, more than two decades since service discharge, where he complained of left sciatica, low back pain radiating to the anterior thigh, into the foreleg and from the 5th to the 3rd digit of the dorsum of the foot. Further review of these records reveal that the Veteran was involved in a motor vehicle accident in January 1994. The Veteran testified that he did not have symptoms of peripheral neuropathy during active duty or for several years thereafter. Furthermore, an examiner reviewed the Veteran’s claims file in June 2015 and found that there was no evidence of early-onset peripheral neuropathy during Vietnam service or within one year of separation. See June 2015 Agent Orange peripheral neuropathy review check list. As such, presumptive service connection is not warranted for peripheral neuropathy as either a chronic disease or presumptive disease associated with exposure to certain herbicide agents because the record shows that peripheral neuropathy was not present during or until more than one year after service discharge and more than one year after the Veteran’s last exposure to herbicides (i.e., within one year after his return from Vietnam). A claimant may establish service connection based on exposure to herbicide agents with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In the current case, the Veteran has not submitted any competent evidence of record linking his peripheral neuropathy to exposure to herbicides. A November 2017 VA clinical record by the examining physician noted that the Veteran was in Vietnam and was exposed to Agent Orange. The Board notes that the examining physician does not provide any etiology opinion linking the Veteran’s peripheral neuropathy to his exposure to herbicides other than a conclusory statement that the Veteran was exposed to herbicides. Therefore, this is given no probative weight. Service connection is not warranted for the peripheral neuropathy on a direct basis due to herbicide exposure. The Board finds there is no evidence in the record, other than the Veteran’s lay statements, linking his peripheral neuropathy to active duty service, to include exposure to herbicides. In order for the evidence of record to trigger the necessity of an examination under McLendon, there must not only be competent evidence of a current disability and evidence of an in-service event, injury or disease; there must also be an indication that the current disability may be associated with the Veteran’s service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran’s separation examination indicates that his lower extremities were normal. Post-service private and VA clinical records document treatment for peripheral neuropathy beginning decades after discharge. None of the post service medical evidence indicates, in any way, that the Veteran has peripheral neuropathy which was due to his military service. The Veteran does not allege the presence of peripheral neuropathy symptoms from active duty to the present. He has indicated that they began several years after discharge. The Board finds there is no competent evidence of record linking his current peripheral neuropathy of the bilateral lower extremities to active duty or to exposure to herbicides. To the extent that the Veteran has alleges a link between herbicide exposure and active duty, this evidence is without probative value. The Veteran is a lay person without specialized medical training. Determining if there is a link between herbicide exposure and a disability requires specialized medical training which the Veteran does not possess. The Board finds that the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Garcia The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.