Citation Nr: 20006404 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 09-09 418 DATE: January 27, 2020 ORDER Entitlement to service connection for early-onset lower extremity peripheral neuropathy, to include as due to exposure to an herbicide agent, is granted. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam War Era; as such, the Veteran is presumed to have been exposed to an herbicide agent during active duty service. 2. The competent, credible, and probative lay and medical evidence is at least in relative equipoise to support that early-onset lower extremity neuropathy, was incurred in, or otherwise caused by, active duty service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for early-onset lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1966 to August 1969. The Veteran was awarded the Air Medal. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. This appeal has had a long procedural history. In November 2017, the Board remanded the appeal for additional medical development. See November 16, 2017 Remand BVA or CAVC. In November 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the Veteran’s claims file. September 2017 Joint Motion of Remand (JMR) Compliance The Veteran appealed the Board’s September 2016 decision which denied granting service connection for the afore-noted disability to the United States Court of Appeals for Veteran’s Claims (Court). In an October 2017 Order, the Court vacated the Board’s decision and remanded the appeal for compliance with a September 2017 Joint Motion for Remand (JMR). Specifically, the parties to the JMR found that the Board erred by failing to consider and address the August 2015 written lay statement of the Veteran’s adult daughter. While the Board found that this lay informant was competent to report observations of the Veteran’s struggles with “numbness, tingling and pain,” the Board failed to address whether this lay evidence—which it deemed credible—tended to support that Veteran’s contention that he has experienced the symptoms of peripheral neuropathy prior to 2001. See October 2, 2017 CAVC Decision, p. 4. While the Board has sought additional medical evidence (additional VA treatment records, private medical records, and a VA medical opinion), reexamination of the lay evidence of record, to include the August 2015 lay statement at the “heart” of the JMR is included below. Service Connection The Veteran contends that current bilateral lower extremity peripheral neuropathy was incurred in, or aggravated by, active duty service. Specifically, he submits that this disability is caused by herbicide exposure in Vietnam. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is a presumption of service connection for certain chronic diseases, including organic diseases of the nervous system, if the disease is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a).) A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307 (a)(6)(iii). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Early-onset peripheral is among the diseases for which this presumption is available. Even if this were not the case, VA must also consider the claim on a direct service-connection basis. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As the Board noted in prior remands, the Veteran’s active duty service in the Republic of Vietnam has been established. Analysis In his August 11, 1969 Separation Report of Medical History, the Veteran indicated that he had and has frequent trouble sleeping. In the “physician’s summary” of this report, a military clinician also opined that the Veteran experienced trouble sleeping concurrent with the examination. A review of the file of private medical records shows that the Veteran’s primary care physician, Dr. M. noted that he has treated the Veteran for internal medicine needs since October 2002. In a letter (received in April 2018), Dr. M. indicated that he had reviewed the Veteran’s civilian medical records, VA “communications,” and medical history. According to Dr. M., the Veteran “carried a diagnosis of idiopathic peripheral neuropathy initially made around 2001.” Furthermore, initial medical evaluation failed to disclose the “genesis” of the Veteran’s symptoms of stinging and burning in the lower extremities. A 2004 nerve conduction study showed progression of the severity of the Veteran’s lower extremity symptomatology. At the time of the neurological testing, according to Dr. M., no clear source of neuropathy was known. See April 5, 2018 Medical Treatment Record—Non-Government Facility, p. 1. Moreover, Dr. M. noted that the Veteran neither has current diabetes mellitus or a history of this disease. Mentioning the Veteran’s active duty service in the Republic of Vietnam, Dr. M. indicated an association between the development of peripheral neuropathy and Agent Orange exposure. The physician also noted that despite extensive modalities of clinical evaluation and diagnostic testing, the “genesis” or etiology of the Veteran’s neuropathy remains idiopathic. See id. at p. 2. “Idiopathic” means “of unknown cause or spontaneous origin.” Dorland’s Illustrated Medical Dictionary 912 (32nd ed., 2012). Turning to findings in the VA medical evidence of record, the Board acknowledges that VA examiners have provided negative nexus opinions. In March 2014, an examiner opined that the Veteran has chronic, and not acute or subacute polyneuropathy, of which the cause is unknown. Nevertheless, according to “the medical literature,” there is nothing to support that this form of neuropathy has any connexity to herbicide exposure. Whereas a January 2018 VA examiner indicated that objective testing disclosed current idiopathic peripheral neuropathy; however, this “idiopathic” neuropathy is sensorimotor axonal polyneuropathy, which does not coincide the Veteran’s subjective endorsements. While the Board finds these medical opinions informative as to the issue of whether the Veteran’s lower extremity peripheral neuropathy is less likely as not secondary to the Veteran’s service-connected lumbar degenerative disc disease (one theory of entitlement which the Veteran has advanced), both examiners indicated that the cause of this disease entity was unknown or idiopathic. The Board assigns diminished probative weight to these examiner’s opinions because of this incongruity. Turning to the lay evidence, the Board notes that the Veteran has offered many disparate subjective accounts concerning the onset and origin of symptoms associated with lower extremity peripheral neuropathy, which diminish the probative value of the Veteran’s lay accounts. As noted above, a lay person (like the Veteran) is generally not capable of opining on matters requiring medical knowledge. See Routen, Bostain, both supra. During the November 2019 Board hearing, the Veteran testified that even though he experienced frequent trouble sleeping due to lower extremity discomfort within one year of separation from service, he had no specialized knowledge that this discomfort constituted a medical disability; rather, when suffering from especially discomforting bouts of lower extremity peripheral neuropathy, the Veteran “[would] just get a new pair of shoes and go back to work.” See November 26, 2019 Hearing Transcript, p. 1. In August 2015, the Veteran submitted a written statement. In pertinent part, he noted that he had a twin brother who was raised in the same environment. Postulating as to the genesis of early-onset lower extremity peripheral neuropathy, the Veteran stated that the twins’ only difference was the Veteran’s service in Vietnam. The Board also takes note of the August 2015 lay written statement of the Veteran’s spouse, who indicated that the Veteran neuropathy pain has worsened progressively and has limited the Veteran’s ability to traverse stairways. There was no mention of the timing of onset of the symptoms. As to the August 2015 written lay statement of the Veteran’s adult daughter, of which the Board’s consideration was ordered in the September 2017 JMR, the Board notes that the daughter has provided a consistent and credible chronological account of the Veteran’s lower extremity complaints, all of which lie within the competency of a lay person. See 38 C.F.R. § 3.159(a)(2). According to the Veteran’s adult daughter, the Veteran has struggled with numbness, tingling, and pain since she was a young child. The daughter observed the Veteran rubbing his feet. Moreover, according to the daughter, the Veteran sought multiple treatments from tingling and pain—including conventional and alternative medical treatments. The Veteran is unable to do “most active things that men his age do.” Otherwise, the daughter addressed her belief that the Veteran’s early-onset bilateral lower extremity peripheral neuropathy is due to herbicide exposure. Here, the daughter reiterated the Veteran’s postulation about his twin brother. However, the file at the time of the 2016 Board decision and review by the parties to the JMR contained reports from the Veteran about his dependents. The adult daughter was born in September 1976. Therefore, recollections of observations of her father by the daughter as a young child would not be credible before the 1980s, more than a decade after service. This evidence is not probative of the issue of early onset. Therefore, the Board did not error nor was it inadequate not to discuss it in the 2016 decision. In December 2019, VA received a copy of a letter from the Veteran’s twin brother (bearing a facial date of November 2019). The twin reported that the Veteran complained of pain and sensations of burning in his feet when he returned home from active duty service in the summer of 1969. This twin also conveyed (presumably as told to him by the Veteran) that the Veteran complained to his superiors about his feet during service, adding that the Veteran’s request for medical attention was denied. Here, the Board assigns considerable probative weight to this recently received lay evidence because the twin brother would have been old enough to accurately recall what he observed, and the observed symptoms are consistent with the same symptoms later diagnosed as peripheral neuropathy. Further, the Board finds that these lay accounts are internally consistent and facially plausible. See Caluza, supra. Through this evidence, the on-set of the Veteran’s complaints of symptomatology of early-onset lower extremity peripheral neuropathy is established and the continuity of this symptomatology is reported credibly. The Board recognizes that that there are significant gaps in the medical evidence of record as to the on-going nature of the Veteran’s lower extremity peripheral neuropathy. However, as reflected above, the Board assigns significant probative weight to the competent, consistent, and credible lay evidence provided by the Veteran’s family. The Board finds that the evidence of record as to onset during service, or shortly after service, with continuity after service is in relative equipoise. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that it is at least as likely as not that the Veteran is entitled to service connection for early-onset lower extremity peripheral neuropathy on a presumptive basis. See 38 U.S.C. § 5107(b); Gilbert, supra. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, Associate Counsel 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.