Citation Nr: 20034072 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 17-51 330 DATE: May 15, 2020 ORDER Entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to exposure to herbicide agents, is denied Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to exposure to herbicide agents, is denied Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The Veteran’s right upper extremity peripheral neuropathy did not have its onset in service or within one year of service, and the record contains no indication that the Veteran’s right upper extremity peripheral neuropathy was otherwise etiologically related to service, to include exposure to herbicide agents. 2. The Veteran’s left upper extremity peripheral neuropathy did not have its onset in service or within one year of service, and the record contains no indication that the Veteran’s left upper extremity peripheral neuropathy was otherwise etiologically related to service, to include exposure to herbicide agents. 3. The Veteran’s right lower extremity peripheral neuropathy did not have its onset in service or within one year of service, and the record contains no indication that the Veteran’s right lower extremity peripheral neuropathy was otherwise etiologically related to service, to include exposure to herbicide agents. 4. The Veteran’s left lower extremity peripheral neuropathy did not have its onset in service or within one year of service, and the record contains no indication that the Veteran’s left lower extremity peripheral neuropathy was otherwise etiologically related to service, to include exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. . The criteria for entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1961 to May 1965, to include service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In September 2019, the Veteran appeared for a videoconference hearing before the undersigned. A transcript of the hearing is of record. In December 2019, the Board remanded the issues of entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy for further development. Specifically, the Board instructed the RO to schedule a VA examination and obtain an opinion identifying whether the Veteran had early onset peripheral neuropathy, and if not, whether his peripheral neuropathy was etiologically related to exposure to Agent Orange. The requested examination and opinions were obtained in February 2020. Additionally, the Board requested that any additional pertinent medical records be obtained; the RO requested authorization from the Veteran to obtain private treatment records, but the Veteran did not respond to the request. Thus, the Board finds there was substantial compliance with the requested development. Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era (the period beginning on January 9, 1962 and ending on May 7, 1975). 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran is presumably exposed to an herbicide agent, then there is a presumption of service connection for certain enumerated diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a) and 3.309(e). Early-onset peripheral neuropathy is among the diseases listed in section 3.309(e) for which presumptive service connection is available based on in-service herbicide exposure, provided it is manifest to a degree of 10 percent or more within 1 year of the last date of the Veteran’s exposure to herbicides. 38 C.F.R. § 3.307(a)(6)(ii). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) and 1116 and 38 C.F.R. § 3.303. Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person’s observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Bilateral upper and lower extremity peripheral neuropathy The Veteran contends that his bilateral upper and lower extremity peripheral neuropathy is related to his military service, to include exposure to herbicide agents in Vietnam. Notably, the Veteran does not contend, nor does the medical evidence indicate that peripheral neuropathy had its onset during active service. Service treatment records, including his separation examination are silent for any complaints, treatment, or diagnosis for peripheral neuropathy of either the bilateral upper or lower extremities or related symptoms. Rather, the Veteran contends that he first noticed twinges and tingles in his extremities shortly after service, which he now attributes to peripheral neuropathy, as a result of his exposure to Agent Orange in Vietnam. Initially, the Board notes that Vietnam service has been established and exposure to herbicide agents is presumed; additionally, the medical evidence establishes that the Veteran has received diagnoses of peripheral neuropathy of the bilateral upper and lower extremities. Thus, the question in this case is whether the Veteran had early-onset peripheral neuropathy of the bilateral upper and lower extremities for which presumptive service connection is available based on in-service herbicide exposure; or alternatively, whether peripheral neuropathy of the bilateral upper and lower extremities was otherwise causally linked to such exposure. Post-service medical treatment records reflect that the Veteran had low back pain, hip pain and associated lower extremity radiation of pain as early as 2010, but no complaints related to peripheral neuropathy were noted until March 2016. Indeed, a March 2016 medical treatment record notes that the Veteran reported tingling in his legs following back surgery approximately two to three years prior; an assessment notes that the symptoms were likely peripheral neuropathy secondary to spinal stenosis. A diagnosis of peripheral neuropathy of the bilateral upper and lower extremities was confirmed in May 2016. At his September 2019 Board hearing, the Veteran testified that when he came back from Vietnam and separated from service, he noticed a twitch in his muscles, which progressed to a tingling in the arms and the feet. He notes that he had problems walking in the 1980s, which he indicated was due to a pinched nerve, and he decided to have an operation. He indicated that his peripheral neuropathies became a noticeable problem in 1999 or 2000, and he was diagnosed with peripheral neuropathy in 2016. The Veteran indicated that he was diagnosed with spinal stenosis in 2013, and he believed that his symptoms of peripheral neuropathy were masked by the pain of the stenosis because, once the stenosis was resolved, the pain of the neuropathy was revealed. The Veteran reported that after service, he was in business and then later became a mental health professional. In a November 2019 correspondence, the Veteran reported that after his Board hearing, he was giving some thought to the onset of his symptoms of peripheral neuropathy, and he indicated that he suffered some pain and tingling in his legs soon after service; however, at the time, he had believed that it was merely cramps or due to being less physically active in his civilian life. The Veteran was afforded a VA examination in February 2020, which notes diagnoses of peripheral neuropathy of the bilateral upper and lower extremities and bilateral chronic lumbosacral polyradiculopathy. The Veteran reported that, while serving in Vietnam, he was living with the Vietnamese as an advisor. He was not able to indicate when his symptoms began; however, in the late 1980s, he reported that he felt little tingles or “jumpies”. The Veteran estimated first feeling these symptoms in the late 1960s or early 1970s. He also indicated that he gets twinges all the way up to his knees. He indicated that he first sought medical care for these symptoms about five years ago because his feet were getting worse. He was diagnosed in May of 2016. The examination notes that the Veteran was currently waiting for aortic valve replacement for aortic stenosis; he had pre-diabetes and had been diagnosed with pruritis, BCC and skin cancer; he also had hypothyroidism. The examination notes that the Veteran started drinking in college, and he stopped drinking in the 1980s; his drinking increased over time, and the medical record notes that he drank excessively while working in the beer industry. Moreover, the examination indicates that EMG shows evidence of chronic moderate lumbosacral polyradiculopathy, which was from his known lumbar spinal stenosis for which he had surgery; the examiner indicated that it was not possible to delineate what portion of the Veteran’s lower extremity symptoms were due to polyradiculopathy or polyneuropathy, but the medical record indicates in multiple notes that his symptoms started after his spinal surgery. The VA examiner indicated that the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities is not consistent with an early-onset peripheral neuropathy. The examiner reasoned that there is ample evidence in the medical record of no complaints or symptoms of peripheral neuropathy until the last few years. The Veteran’s separation physical examination in May 1965 and a reserve physical examination in September 1966, more than a year after discharge, do not note any symptoms or findings of peripheral neuropathy. Additionally, the examiner opined that it is less likely than not that the Veteran’s peripheral neuropathy is related to his presumed exposure to herbicide agents. The examiner indicated that the Veteran has risk factors for peripheral neuropathy including a history of alcohol abuse and hypothyroidism; however, almost half of peripheral neuropathies are idiopathic. In addition, the Institute of Medicine’s latest study: Veterans and Agent Orange: Update 2014, does not find sufficient evidence of a causative association of Agent Orange exposure to chronic peripheral nervous system disorders. After a review of the evidence, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for peripheral neuropathy of the bilateral upper and lower extremities. In this regard, the Board finds the VA examiner’s opinion highly probative. After reviewing the Veteran’s medical records, reports of onset of symptoms, and conducting an in person evaluation, the examiner found that the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities was not consistent with an early-onset peripheral neuropathy, and his bilateral upper and lower extremity peripheral neuropathy was less likely than not related to his presumed exposure to herbicide agents. Both opinions were supported by rationale, including citation to pertinent medical literature and noting the Veteran’s other relevant risk factors for developing peripheral neuropathy. Although the Veteran has reported that he experienced symptoms of pain and tingling, particularly in his legs, soon after separation from service, the Board finds that these recent reports are inconsistent with the evidence of record. As indicated above, the Veteran’s medical treatment records, both during and after service, are silent for peripheral neuropathy or related symptoms for more than 40 years after his separation from service; numerous post-service annual physical examinations during this time also note that the Veteran explicitly denied any pain, tingling, or numbness in his extremities. This contemporaneous lay and medical evidence outweighs the Veteran’s more recent reports of onset of his peripheral neuropathy symptoms, as these more recent assertions were made years after service for VA compensation purposes and not for treatment purposes. Thus, the Board finds that, to the extent that the Veteran’s recent reports attempt to establish early-onset or the manifestation of peripheral neuropathy within one year of his separation from service, these statements are outweighed by the medical treatment records. The Board acknowledges that the Veteran was a mental health professional, and as such, has some medical experience; however, the record does not show that he has medical expertise in attributing symptoms of muscle twitching or tingling in his bilateral upper and lower extremities to a diagnosis of peripheral neuropathy or relating his current diagnosis of peripheral neuropathy to active service, to include exposure to herbicide agents. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Thus, the Board finds that the Veteran’s opinions are outweighed by those of the VA examiner, who clearly does have the education, experience, and training to diagnose peripheral neuropathy and provide such etiology opinions. Finally, the Board recognizes that the evidence suggests that the Veteran’s peripheral neuropathy may be related to his back disability, the Veteran is not service connected for his back disability. However, the Veteran is not service connected for a back disability. Service connection may only be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury or if a non-service-connected disability is aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b). Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to exposure to herbicide agents. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hite, 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.