Citation Nr: 20007954 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-18 507 DATE: January 30, 2020 ORDER Entitlement to service connection for peripheral polyneuropathy due to chronic inflammatory demyelinating polyneuropathy is denied. FINDING OF FACT The weight of the evidence is against finding that peripheral polyneuropathy due to chronic inflammatory demyelinating polyneuropathy (CIDP) began during active service, or is otherwise related to an in-service injury, event, or disease, and it is not shown to be a related to herbicide agent exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for peripheral polyneuropathy due to CIDP have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1966 to November 1968, to include service in the Republic of Vietnam. In connection with this appeal, the Veteran testified at a hearing before the undersigned in November 2018. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, to include early-onset peripheral neuropathy, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran’s service record shows he had service in the Republic of Vietnam. As such, he is presumed to have been exposed to herbicide agents. The Veteran filed a request to reopen his service connection claim for peripheral neuropathy in August 2015, which was denied by a November 2015 rating decision. In a March 2019 Board decision, the Board granted reopening the Veteran’s service connection claim and remanded for additional development. The Veteran asserts that his peripheral neuropathy is due to his presumed herbicide agent exposure. The Veteran’s STRs show that at an October 1966 entrance physical, a January 1968 physical, and a November 1968 separation physical, he did not report any peripheral neuropathy symptoms and had normal examinations of his upper and lower extremities. His STRs do not show any complaints, treatment, or diagnosis for peripheral neuropathy during his active service. The Veteran’s medical records show that the Veteran was diagnosed with sensorimotor peripheral polyneuropathy in April 2009. His physician advised him to follow up with a VA neurologist as he may have been exposed to substances that could explain his peripheral neuropathy. In January 2014, Drs. Paula Emanuela Voinescu and Tracey A. Cho examiner the Veteran. The doctors noted that the Veteran reported that other causes for his neuropathy were ruled out and that the only explantation given was that his neuropathy may be due to herbicide agent exposure. The doctors diagnosed the Veteran with a six year history of sensorimotor polyneuropathy and concluded that herbicide agent exposure “seemed” to be the only possible explanation. In October 2015, the Veteran was afforded a VA examination. He reported that he noticed neuropathy symptoms about ten to eleven years previously. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner diagnosed the Veteran with peripheral neuropathy due to CIDP. In January 2018, a VA examiner reviewed the Veteran’s claims file and opined that the Veteran’s peripheral neuropathy from CIDP was less likely than not incurred in or caused by the Veteran’s active service. The examiner reported that the Veteran was exposed to herbicide agents over 30 years prior to his diagnosis. The examiner concluded that the Veteran’s peripheral neuropathy onset was over 30 years after his herbicide agent exposure and caused by CIDP. At the November 2018 Board hearing, the Veteran testified that he had numbness in his feet began that gradually worked up into his entire body. In May 2019, the Veteran’s VA physician Dr. S. P. diagnosed the Veteran with long-standing chronic sensorimotor polyneuropathy without identifiable etiology. His physician reported that the Veteran’s symptoms “may” be related to herbicide agent exposure. In September 2019, a VA examiner reviewed the Veteran’s claims file, including the May 2019 treatment record, the examiner reported that the Veteran was diagnosed with CIDP that is an autoimmune condition whose exact cause is unknown. The examiner reported that the Veteran’s physicians asserted by default that the Veteran’s CIDP was due to herbicide agent exposure but did not include any supportive evidence to substantiate the findings. The examiner reported that medical studies found there was inadequate or insufficient evidence to determine whether there was an association between herbicide agent exposure and delayed-onset chronic neuropathy. The examiner concluded that the Veteran was diagnosed with CIDP, a rare neurological autoimmune disorder. The examiner opined that the Veteran’s diagnosed CIDP was less likely than not incurred in or caused by the Veteran’s active service, to include his presumed herbicide agent exposure. Here several medical opinions are of record, all of which were provided by medical professionals who are presumed to have the training and expertise to opine on an orthopedic condition. As such, each opinion is considered to constitute both competent and credible evidence, which is deemed to be probative. However, the Board must determine what evidence is the most probative. After weighing all the evidence, the Board finds the greatest probative value in the January 2018 and September 2019 VA examiners’ opinions, which considered the elements necessary to substantiate a service connection claim involving presumed herbicide agent exposure. Drs. Voinescu and Cho concluded that herbicide agent exposure “seemed” to be the only possible explanation for the Veteran’s peripheral polyneuropathy. Dr. S, P. opined that the Veteran’s peripheral polyneuropathy was without identifiable etiology and “may” be related to herbicide agent exposure. However, these physicians provided no rationale for their opinions or referred to any medical evidence within the Veteran’s claims file that led him to their conclusions. This appears to be highly relevant in that the Veteran’s STRs and medical records contained no objective medical evidence of peripheral polyneuropathy until April 2009, which is over four decades after the Veteran’s separation from active service. In addition, the opinions of Drs. Voinescu, Cho, and S. P. are conclusory in nature as they found that the Veteran’s peripheral polyneuropathy “seemed” or “may” be related to herbicide agent exposure. As such, the Board finds that the opinions from Drs. Voinescu, Cho, and S. P. were not based on any objective medical evidence or medical studies, which undermines the probative value of their opinions. Conversely, the January 2018 and September 2019 VA examiners concluded that the Veteran’s peripheral neuropathy from CIDP was less likely than not due to his active service, to include his presumed herbicide agent exposure, and specifically explained why. The November 2012 and October 2018 VA examiners are shown to have reviewed and considered the pertinent evidence of record, referred to medical studies, and to have provided adequate rationale for their opinions. The Veteran’s reported history was adequately considered. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board appreciates the opinions of Drs. Voinescu, Cho, and S. P. However, ultimately, the January 2018 and September 2019 VA examiners’ opinions are given greater weight. The opinions by the January 2018 and September 2019 VA examiners were fully grounded in the medical evidence and medical literature. The January 2018 and September 2019 examiners were fully apprised of the Veteran’s presumed herbicide agent exposure. The January 2018 and September 2019 examiners clearly explained why the Veteran’s peripheral neuropathy was due to CIDP and not due to any herbicide agent exposure. The January 2018 and September 2019 examiners opined that the Veteran’s peripheral neuropathy due to CIDP was less likely than not due to his active service. Here, the support provided by the January 2018 and September 2019 VA examiners for their opinions is found to be greatly superior to the opinion of Drs. Voinescu, Cho, and S. P., which found that the Veteran’s peripheral polyneuropathy “seemed” or “may” be related to herbicide agent exposure. Given its grounding in the medical evidence in this case and the medical literature, the opinions of the January 2018 and September 2019 VA examiners are found to be the most probative evidence in this case, and therefore are afforded the greatest weight. Consideration has been given to the assertions of the Veteran that his peripheral polyneuropathy is due to his active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, namely the etiology of polyneuropathy, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Neurological disorders are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding etiology, as the evidence shows that physical examinations that include objective medical tests, such as nerve conduction studies, are needed to properly assess and diagnose the disorders. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372, 1377; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report neuropathy symptoms, such as numbness, to the extent they are identifiable by observation, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating neurological disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. The record does not contain evidence of a diagnosis of a continuously ongoing peripheral polyneuropathy symptoms from the Veteran’s active service to the present, as the first objective medical evidence of peripheral polyneuropathy is not until April 2009, which is over four decades after his active service. In addition, at physicals during his active service, he had normal examinations of his upper and lower extremities. As such, the Board does not find that the evidence of record shows continuous foot symptomatology. The Board also notes that the Veteran is not entitled to presumptive service connection for his peripheral polyneuropathy due to CIDP. Presumptive service connection due to herbicide agent exposure would be granted if the Veteran was diagnosed with early-onset peripheral neuropathy. The record contains no objective medical diagnosis of early-onset peripheral neuropathy. The Veteran has been diagnosed with peripheral polyneuropathy due to CIDP. Therefore, the presumption of service connection for exposure to herbicide agents has not been triggered. (Continued on the next page)   Accordingly, the criteria for service connection have not been met for peripheral polyneuropathy due to CIDP. That is, the evidence does not show peripheral polyneuropathy due to CIDP was diagnosed during his active service or within a year of separation from active service, the weight of the evidence is against a finding that peripheral polyneuropathy due to CIDP has existed continuously since active service, and the weight of the evidence is against a finding that the Veteran’s peripheral polyneuropathy due to CIDP is due to his active service, to include his presumed herbicide agent exposure. Therefore, the Veteran’s claim is denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.