Citation Nr: 20040171 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 17-40 596 DATE: June 11, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to May 9, 2017, is denied. Entitlement to service connection for bilateral peripheral neuropathy, lower extremities, to include as due to exposure to herbicides and/or as secondary to service-connected heart disability, is denied. Entitlement to service connection for bilateral peripheral neuropathy, upper extremities, to include as due to exposure to herbicides and/or as secondary to service-connected heart disability, is denied. FINDINGS OF FACT 1. Prior to May 9, 2017, the Veteran does not meet the schedular criteria for TDIU, nor does the record reflect probative evidence for referral under extraschedular consideration. 2. The preponderance of the evidence is against a finding that the Veteran’s bilateral upper and lower extremities peripheral neuropathy was related to his herbicide exposure, or proximately caused or aggravated by his service-connected heart disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to May 9, 2017, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.16. 2. The criteria for entitlement to service connection for bilateral peripheral neuropathy, lower extremities, to include as due to exposure to herbicides and/or as secondary to service-connected heart disability, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § § 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for bilateral peripheral neuropathy, upper extremities, to include as due to exposure to herbicides and/or as secondary to service-connected heart disability, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § § 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7101(a)(2). The Veteran served on active duty from July 1971 to June 1973. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. These matters were previously before the Board in April 2018 and July 2018, where they were remanded for further development. The Board notes that there was substantial compliance with its July 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to May 9, 2017 The Veteran contends that he is unemployable due to his service-connected disabilities. TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation resulting from a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether unemployability exists due to a service-connected disability or disabilities, consideration may be given to the Veteran’s level of education, special training, and previous work experience; however, age and impairment caused by nonservice-connected disabilities are not factors for consideration. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of TDIU. 38 C.F.R. §§ 3.341, 4.16, 4.19. Also, it is necessary that the record reflect some factor(s) that places the Veteran in a different category than other veterans with equal ratings of disability. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The ultimate question is whether the veteran can perform the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). As an initial matter, the Board notes that in a September 2019 rating decision, the Veteran was assigned a 100 percent disability rating for his service-connected coronary artery disease, effective June 18, 2019; as well as, special monthly compensation (SMC) based on his coronary artery disease, effective June 18, 2019. Subsequently, the Veteran was awarded an earlier effective date of June 22, 2018 for his 100 percent disability rating for his service-connected coronary artery disease; as well as, granted TDIU from May 9, 2017 to June 22, 2018. Therefore, based on the above, the issue of entitlement to TDIU is moot from May 9, 2017. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 1114(s); Holland v. Brown, 6 Vet. App. 443, 446 (1994); Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, the Board will only address the matter of entitlement to TDIU for the period prior to May 9, 2017. The Veteran’s service-connected disabilities prior to May 9, 2017 included only coronary artery disease, which was rated as 30 percent disabled from April 10, 2014. Based on this, the Veteran had a combined schedular rating of 30 percent; and therefore, does not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). However, where a veteran does not meet the schedular requirements of 38 C.F.R. § 4.16(a), the Board may nevertheless refer the claim to the Director of Compensation Service for extraschedular consideration if the veteran is unable to secure and/or maintain substantially gainful employment by reason of service-connected disabilities. See Wages v. McDonald, 27 Vet. App. 233 (2015). However, a review of the record does not show and/or suggest that his service-connected coronary artery disease alone rendered him unemployable, nor has the Veteran supplied any evidence to the contrary. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim; therefore, entitlement to TDIU, to include referral to the Director of Compensation Service, is not warranted. The claim is denied. Service Connection Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence showing (1) current disability; (2) in-service incurrence in or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Additionally, service connection may be granted on a secondary basis for a condition that is not directly caused by the Veteran’s service. 38 C.F.R. § § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities, and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § § 3.310(b). Certain “chronic diseases” may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service; however, if the evidence of the record is insufficient to establish a disease was chronic in service, and/or manifested within the specified time period, then there must be a continuity of disease symptoms shown after discharge in order to warrant service connection. 38 C.F.R. § 3.303(b). Additionally, VA regulations provide that if a Veteran was exposed to herbicides during service, and meets the requirements for a presumption of herbicide exposure under 38 C.F.R. § 3.307, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to herbicides. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin’s disease, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). In addition, the Secretary of VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (June 12, 2007); Notice, 74 Fed. Reg. 21, 258021, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Furthermore, with respect to early-onset peripheral neuropathy, VA regulations state that such disease must 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 duty service. See 38 C.F.R. § 3.307(a)(6)(ii). Furthermore, the Board notes that, VA’s Compensation Service has acknowledged exposure to tactical herbicides, such as Agent Orange, on a direct, occupational, or facts found basis for veterans with duty on military base perimeters in Thailand during the Vietnam era. See M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 5. VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand for the purpose of eliminating vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense (DOD) document titled, “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Id. Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near perimeters of Thailand military bases. Id. This allows for presumptive service connection of the diseases associated with herbicide exposure. Id. VA’s Adjudication Procedure M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 5, directs, in pertinent part, that if a veteran served in the U.S. Air Force during the Vietnam Era at one of the specified Royal Thai Air Force Bases (RTAFBs), including Udorn, as an Air Force security policeman, a security patrol dog handler, a member of the security police squadron, or in a capacity that otherwise placed them near the air base perimeter as shown by the evidence of record, to include daily work duties, performance evaluation reports or other credible evidence, then herbicide exposure is to be conceded.   2. Entitlement to service connection for bilateral peripheral neuropathy, lower extremities, to include as due to exposure to herbicides and/or as secondary to service-connected heart disability 3. Entitlement to service connection for bilateral peripheral neuropathy, upper extremities, to include as due to exposure to herbicides and/or as secondary to service-connected heart disability The Veteran contends that his current bilateral upper and lower extremities peripheral neuropathy is directly related to his exposure to herbicide agents during his active duty service near base perimeters in Thailand during the Vietnam era; or is otherwise proximately caused and/or aggravated by his service-connected heart disability. The medical evidence of record includes the Veteran’s reports that his peripheral neuropathy first manifested as early as 1991, with reported symptoms manifesting prior to 2008; however, objectively, was not diagnosed until 2018. Additionally, the Board notes that the VA has conceded to the Veteran’s exposure to the herbicide agent of Agent Orange, as the Veteran’s service records reflect that he worked on or was near the perimeters of various military bases for herbicide exposure purposes (see VA Memo, December 2016). 38 C.F.R. § 3.307(a)(6)(iii). However so, the Board further notes that only early-onset peripheral neuropathy is a listed disease for presumptive service connection under 38 C.F.R. § 3.309(e), and the medical evidence of record reveals that the Veteran’s peripheral neuropathy was noted to be that of delayed-onset. Nevertheless, even if the Veteran’s condition was labeled as early-onset, the record does not reflect that the condition first became manifest to a compensable degree within a year after the last date on which the Veteran was exposed to an herbicide agent duding active duty service. See 38 C.F.R. § 3.307(a)(6)(ii). As noted above, the earliest sign of symptoms and/or diagnosis of the Veteran’s condition was in 1991, which is not within a year of the last date on which the Veteran served near the perimeters of Thailand. Therefore, as a result of the above, the Board finds that the Veteran does not meet the criteria for presumptive service connection for exposure to herbicide agents. Nevertheless, although service connection on a presumptive basis is not applicable, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this case, the evidence of record does support a conclusion that the Veteran’s bilateral upper and lower extremities peripheral neuropathy was directly related to his herbicide exposure in service, or otherwise proximately caused and/or aggravated by his service-connected heart disability. Service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of peripheral neuropathy, or any signs or symptoms related to the condition. Post-service VA and private treatment records reflect complaints of and treatment for numbness and tingling in the upper and lower extremities, with diagnoses of bilateral idiopathic progressive polyneuropathy and moderate axonal polyneuropathy. Additionally, the Board notes that in a June 2018 private treatment record, the examiner opined that he “suspect[s] [the Veteran’s] exposure to agent orange may be a likely etiology for his condition.” See Medical Treatment Record – Non-Government Facility, June 2018. However, the private examiner did not provide a rational for his speculative opinion. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). In October 2017, April 2018, and November 2018, the Veteran was provided VA examinations and opinions to assess the current nature and etiology of his claimed conditions. However, the Board notes that these opinions are deemed inadequate for adjudicative purposes, as they did not provide adequate supporting rationales for their unfavorable opinions, nor adequately address the Veteran’s claim under secondary service connection. Therefore, due these inadequacies, the Veteran was provided an addendum medical opinion in August 2019. Upon review, the examiner noted the Veteran’s bilateral upper and lower extremities peripheral neuropathy as idiopathic and delayed-onset; and opined that it was less likely than not related to his exposures to herbicides and/or proximately caused or aggravated by his service-connected heart disability. The examiner rationalized that the Veteran’s condition was objectively diagnosed in 2018, about 48 years post-service, with reported symptoms starting in 2008, at least 37 years post-service, and this time course makes it highly unlikely that an exposure during service led to the current condition. Additionally, the examiner provided that coronary artery disease, a blockage of the arteries that supply blood to the heart, does not cause idiopathic polyneuropathy, a condition of the nerves; nor does it support worsening, as there is no objective evidence to substantiate this, and the time course of the heart disability, diagnosed in 2008, does not support aggravation, as prior examinations reflect symptoms of neuropathy occurring before that time. Furthermore, the examiner noted that medical literature does not support that herbicides cause a delayed-onset neuropathy, nor support that the Veteran’s heart disability causes or worsens idiopathic polyneuropathy (with specific discussion on the lack of correlation in the cited articles supplied by the Veteran’s representative in a June 2018 correspondence). Based on the above, the probative evidence of record is against the Veteran’s claims. As the record does not contain, nor has the Veteran otherwise supplied, any additional probative evidence to the contrary, the Board finds that service connection for the Veteran’s bilateral upper and lower extremities peripheral neuropathy is not warranted; and the claims are denied.   The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1991). BRANDON A. WILLIAMS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, 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.