Citation Nr: 20046884 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 17-66 654 DATE: July 14, 2020 ORDER Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is denied. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is denied. FINDINGS OF FACT The preponderance of the evidence of record is against finding that the Veteran’s chronic inflammatory demyelinating polyneuropathy (CIDP) of the bilateral upper and bilateral lower extremities is related to his military service, to include his in-service exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the bilateral upper extremities are not met. 38 U.S.C. §§ 1110, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. The criteria for service connection for peripheral neuropathy of the bilateral lower extremities are not met. 38 U.S.C. §§ 1110, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1963 to August 1965, and from January 1968 to December 1969, to include service in the Republic of Vietnam. The Veteran seeks entitlement to service connection for peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities as a result of his military service. Specifically, he contends that his peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities are the result of his presumed in-service exposure to herbicide agents, including Agent Orange. See, e.g., November 2012 Correspondence. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Additionally, a veteran who, during active 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 that service. 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases, including early-onset peripheral neuropathy, shall be service-connected if the veteran was exposed to an herbicide agent during active service even though there is no record of such disease during service, provided that the requirements of 38 C.F.R. § 3.307(d) are satisfied. 38 C.F.R. § 3.309(e). Even if a disease is not listed as one of the diseases presumptively associated with exposure to herbicide agents, the United States Court of Appeals for the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The Board concludes that, although the evidence of record demonstrates that the Veteran has a current diagnosis of CIDP of the bilateral upper and bilateral lower extremities, and his in-service exposure to herbicide agents has been conceded, the preponderance of the evidence weighs against a finding that his CIDP of the bilateral upper and bilateral lower extremities is related to his military service, to include any in-service exposure to herbicide agents. Initially, the Board notes that the Veteran has a current diagnosis of CIDP of the bilateral upper and bilateral lower extremities. Thus, the Board finds that the Veteran has current disabilities. With regard to the second element of service connection, the Board notes that the Veteran’s service records confirm that he served in the Republic of Vietnam during the requisite time period; therefore, he is presumed to have been exposed to herbicide agents. Therefore, the remaining inquiry is whether there was a nexus, or link, between the Veteran’s in-service exposure and his CIDP. The Veteran’s service treatment records are silent for any complaints of, or treatment for, CIDP and/or any other neurological disorders. Indeed, in his December 1969, the Veteran specifically denied experiencing neuritis. The Board also notes that there are no post-service treatment records contemporaneous with the Veteran’s December 1969 discharge indicating that he began experiencing symptoms associated with CIDP within close proximity to his discharge; rather, private treatment records consistently reflect that his symptoms began in December 2006, approximately thirty-seven years after he was discharged from active duty. Given the length of time from when the Veteran was discharged and when he began to experience CIDP symptoms, the Board finds that presumptive service connection is not warranted under 38 C.F.R. § 3.307(a)(6) as early-onset peripheral neuropathy. In November 2011, the Veteran submitted a March 2010 Board decision that granted another veteran’s claim for service connection for CIDP as a result of his presumed exposure to herbicide agents in the Republic of Vietnam. In February 2012, the Veteran underwent a VA examination, and the examiner confirmed his diagnosis of CIDP; however, no opinion was offered as to whether his CIDP was related to his military service, to include his presumed exposure to herbicide agents. In August 2014, the Veteran submitted a private medical opinion, in which it was opined that his CIDP of the bilateral upper and bilateral lower extremities was at least as likely as not due to his exposure to Agent Orange while in service; however, the treatment provider provided no supporting rationale for the conclusion reached. Thus, as was noted in the Board’s February 2018 remand, the private August 2014 medical opinion is insufficient upon which to base a grant of entitlement to service connection. In connection with the Board’s February 2018 remand, a VA medical opinion was obtained in May 2020. Initially, the opinion provider noted that the Veteran’s claims file was reviewed, and she provided a brief summary of his pertinent medical history, including a discussion of his service treatment records and post-service treatment records, including the records surrounding the onset of his CIDP symptoms in December 2006. The opinion provider then noted that the weight of medical literature supports that CIDP is a peripheral neuropathy with an autoimmune etiology, and that no connection to a report history of herbicide exposure has been found. Insofar as early-onset peripheral neuropathy had been associated with herbicide agent exposure, the examiner noted that early-onset peripheral neuropathy was seen in the pattern of other toxic exposure, noting that medical literature indicated that the natural progression of toxic exposure if for all symptoms to be present and at worst severity at the time of exposure. Thus, the opinion provider concluded that the Veteran’s CIDP did not fit the pattern that would be seen in early-onset peripheral neuropathy as a result of exposure to herbicide agents. The opinion provider continued that the August 2014 private medical opinion was offered without rationale, and that its conclusion was not supported by the medical of medical literature, particularly neurological literature. The opinion provider then noted that the August 2014 conclusion was contradicted by the fact that the Veteran’s CIDP treatments were designed to dampen autoimmune responses, and that the treatment was helpful. Thus, the examiner concluded that it was less likely than not that the Veteran’s CIDP of the bilateral upper and bilateral lower extremities was related to his military service, to include his in-service exposure to herbicide agents. Based on the evidence of record, the Board concludes that the preponderance of the evidence weighs against a finding that the Veteran’s CIDP of the bilateral upper and bilateral lower extremities are related to his military service, to include his in-service exposure to herbicide agents. Significantly, there is little probative evidence of record favoring a finding that such a relationship exists. To the contrary, the most probative evidence of record is the February 2020 VA medical opinion which provided a clear conclusion and discussion surrounding the Veteran’s claim that his CIDP of the bilateral upper and bilateral lower extremities are related to his in-service exposure to herbicide agents. The opinion is probative because it is based on a complete review of the claims file, including the evidence linking early-onset peripheral neuropathy to herbicide agent exposure, and it provides an explanation that contains a clear conclusion and a supporting rationale, namely distinguishing between early-onset peripheral neuropathy and CIDP that it associated with autoimmune problems. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As for the Veteran’s contentions, although lay persons are competent to report symptoms or other matters within their personal knowledge, and to provide opinions on some medical matters (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the specific matter of whether the Veteran’s CIDP of the bilateral upper and bilateral lower extremities are related to his military service, to include his in-service exposure to herbicide agents, is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Specifically, the question raised involves medical subjects concerning internal physical processes extending beyond an immediately observable cause-and-effect relationship. The Veteran is not shown to have the necessary training and expertise to provide a competent opinion on the issues raised in this appeal. Insofar as the Veteran has submitted a prior Board decision in support of his claim that service-connection is warranted, the law is quite clear that Board decisions are not precedential and that claims for VA benefits are to be decided on the individual facts of each case. See 38 C.F.R. § 20.1303 (2019); McDowell v. Shinseki, 23 Vet. App. 207, 228 (2009). Thus, the Board decision in this claim, as in every other claim, rests on the specific facts of the case at hand. The Board recognizes the Veteran’s honorable service to this county, to include combat service in Vietnam. Nevertheless, absent probative evidence demonstrating that his CIDP of the bilateral upper and bilateral lower extremities are related to his military service, to include his in-service exposure to herbicide agents, the evidence of record is against the claims. As such, reasonable doubt does not arise, and his claims for service connection must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.