Citation Nr: 20030113 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 16-46 720A DATE: April 29, 2020 ORDER Entitlement to service connection peripheral neuropathy of the right upper extremity, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection peripheral neuropathy of the left upper extremity, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and exposure to herbicide agents is conceded. 2. The preponderance of the evidence is against finding that the Veteran’s peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities began during active service or was manifested to a compensable degree within one year of discharge, or is otherwise related to an in-service injury or disease, to include exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the right upper extremity are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for peripheral neuropathy of the left upper extremity are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for peripheral neuropathy of the right lower extremity are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309 4. The criteria for service connection for peripheral neuropathy of the left lower extremity are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1964 to June 1973. This matter was previously before the Board in February 2019, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO private medical records, as per the February 2019 remand. Moreover, the RO obtained VA examinations and opinions regarding entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities on a direct, secondary and aggravation basis. The RO most recently readjudicated the appeal in a January 2020 supplemental statement of the case. The Board finds that VA has substantially complied with the February 2019 Board remand. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including an organic disease of the nervous system, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be “shown in service,” the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period 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 service. 38 U.S.C. § 1116 (f). Moreover, it is provided that the diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C. § 1116; 38 C.F.R. § 3.308 (a)(6)(ii). These diseases include early-onset peripheral neuropathy. 38 C.F.R. § 3.309 (e). In addition, the United States Court of Appeals for the Federal Circuit has determined that a Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection peripheral neuropathy of the right upper extremity 2. Entitlement to service connection peripheral neuropathy of the left upper extremity 3. Entitlement to service connection for peripheral neuropathy of the right lower extremity 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity The Veteran has asserted that peripheral neuropathy affecting his bilateral upper and lower extremities is the result of military service, to include as due to exposure to Agent Orange. At the outset, the Board notes that the Veteran has diagnoses of bilateral upper extremities and bilateral lower extremities neuropathy and that the RO has conceded the Veteran’s exposure to herbicide agents while in active service. As an initial matter, the Board notes that peripheral neuropathy is not among the specific chronic diseases presumptively associated with service, listed under 38 C.F.R. § 3.309(a). Early-onset peripheral neuropathy is a presumptive service connection associated with exposure to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). To qualify for the presumption, peripheral neuropathy must have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). However, after reviewing the overall record, the Board finds that service connection is not warranted on a presumptive basis for the neuropathy affecting the Veteran’s upper and lower extremities because the evidence does not show that the conditions manifested to a degree of 10 percent or more within a year of the last date of exposure to herbicides, or within one year following his discharge from service. The Veteran separated from service in June 1973. The record does not indicate he was diagnosed with peripheral neuropathy or a neurological condition within one year of his last contact with herbicide agents or his date of separation from service. As noted in the prior Board remand, at the Veteran’s separation examination and report of medical history in March 1973, he complained of “occasional cramping in shoulder muscles” and “swollen or painful joints” and, in April 1974, he filed a claim for service connection for “lower extremity aches” and “neck, back, left shoulder/chest pressure, stiffness and aches.” Nevertheless, no neurologic issues were noted on the Veteran’s separation examination. The Veteran has maintained that, post-service, he complained of a nervous disorder and has alleged that he has had a problem with his nerves since service. The Board notes that the Veteran has been service-connected for an acquired psychiatric condition since his separation from service. At various times, that acquired psychiatric condition was claimed as an anxiety reaction (July 1974 rating decision), nervous condition (June 1975 hearing testimony) and anxiety neurosis (August 1975 Board Decision). The Veteran has been service connection for an acquired psychiatric condition since the day after his separation from service. Per the February 2019 Board remand, the Veteran was afforded another VA examination for his present claims. The examiner diagnosed the Veteran, in relevant part, with diffuse polyneuropathy of the bilateral upper extremities and bilateral lower extremities. The examiner had the chance to examine the Veteran and review his claims file and his report contains a thorough review of available records in service and after service. The examiner found that there were no reported symptoms or diagnoses of peripheral neuropathy in service. The examiner further noted that a May 1974 examination for ratings purposes also found no neurological disorders and but diagnosed the Veteran with an anxiety reaction. The first evidence in the record of neuropathy was found to be in January 2013, and the Veteran was first diagnosed with polyneuropathy by his primary care physician in March 2013, nearly four decades after his separation from service. A subsequent EMG/NCV test in September 2015 confirmed worsening polyneuropathy. As directed by the February 2019 Board remand, the examiner provided three opinions. The examiner opined that it was less likely than not that the Veteran’s peripheral neuropathy began during service or manifested itself within one year after service. The examiner also found that the Veteran’s peripheral neuropathy was less likely than not related to any in-service injury, event, or disease. Finally, the examiner opined that it was less likely than not that the Veteran’s peripheral neuropathy was proximately due to the Veteran’s acquired psychiatric condition or aggravated beyond its natural progression thereby. There is also no objective evidence in the Veteran’s record indicating a link between his time in service and his current bilateral lower extremity neuropathy. Unfortunately, the only etiological opinions and rationales of record are from the December 2019 VA examinations which provides evidence against the claims. The Board has considered the statements from the Veteran asserting that he initially experienced numbness and tingling in service, as well as his reported exposure to herbicide agents. The Veteran is certainly competent to report as to the observable symptoms he experiences and their history, but he cannot diagnose peripheral neuropathy because of the medically complex nature of such a diagnosis. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship. Id. Accordingly, the Veteran’s assertions as to a relationship between his conditions and service are of little probative value. It is important for the Veteran to understand that the medical findings provide highly probative evidence against the claim that the Board cannot, unfortunately, ignore. These findings provide a clear basis for the opinion. Based on the reasons and bases discussed, the Board finds that the preponderance of the evidence is against the claim for service connection for peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities. Accordingly, the claims must be denied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See U.S.C. §5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.