Citation Nr: 20029156 Decision Date: 04/27/20 Archive Date: 04/27/20 DOCKET NO. 18-50 052 DATE: April 27, 2020 ORDER Entitlement to service connection for peripheral neuropathy of the lower extremities, to include sensorimotor axonal polyneuropathy, as due to exposure to Agent Orange (AO)/herbicides, is denied. FINDING OF FACT The Veteran’s peripheral neuropathy of the lower extremities did not have its onset in service, was not manifested within one year of service discharge or within one year of the Veteran’s exposure to AO/herbicides, and is not otherwise related to service, to include AO/herbicides exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for peripheral neuropathy of the lower extremities, to include sensorimotor axonal polyneuropathy, as due to exposure to Agent Orange or herbicides, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in United States Navy from October 1966 to June 1992. The Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) via videoconference in February 2020. A transcript of the hearing is included in the claims file. At the Board hearing, the Veteran and his representative requested that the Board hold the record open for 60 days in order to submit additional evidence in support of the Veteran’s appeal. The Veteran has not supplemented the claims file with additional evidence in connection with the current claim, and the Board will now consider the evidence within the claims file in support of his appeal. Additional VA treatment records were associated with the claims file after the September 2018 statement of the case was issued. The Board finds that they are not pertinent to the claim being decided in this determination. For example, the issue before the Board is whether the current bilateral peripheral neuropathy of the lower extremities is related to service. A diagnosis of peripheral neuropathy is not in contention, and the VA treatment records confirm the diagnosis that existed at the time of the September 2018 statement of the case. Thus, there is no prejudice to the Veteran in proceeding to adjudicate the claim for service connection for bilateral peripheral neuropathy of the lower extremities. At the hearing, the Veteran told the undersigned that he had been diagnosed with peripheral neuropathy in the upper extremities. The Board finds that the Veteran would be best served if he filed a separate, formal claim for service connection for peripheral neuropathy of the upper extremities. The agency of original jurisdiction (AOJ) has considered peripheral neuropathy in the lower extremities only, and the Board believes that it would prejudice the Veteran for the Board to address the upper extremities at this time without the AOJ addressing the upper extremities in the first instance. Entitlement to service connection for peripheral neuropathy Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a disability, a Veteran must show: (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. 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). The disability at issue is a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, certain chronic diseases, such as peripheral neuropathy, become manifest to a degree of 10 percent or more within one year after the date of separation from such 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, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). If a veteran was exposed to an “herbicide agent,” such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases will be service-connected even if there is no in-service record of the disease in service. 38 C.F.R. § 3.307(a)(6), (d), 3.309(e). Notwithstanding the foregoing presumptions, a veteran is not precluded from establishing service connection due to exposure to herbicides with proof of direct causation. The Veteran’s claims file documents that the Veteran served in Vietnam, and, as such, service connection is presumed for the disabilities listed in 38 C.F.R. § 3.309(e). Upon review, the Board finds that early-onset peripheral neuropathy is listed in 38 C.F.R. § 3.309(e). Under 38 C.F.R. § 3.307(a)(6)(ii), it states that the early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within one year after the last date on which the veteran was exposed to an herbicide agent. As such, the Board will address whether a presumption based on herbicide exposure is warranted for the claim for peripheral neuropathy of the lower extremities. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran’s claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. The Veteran believes that his neuropathy had its onset due to him being exposed to Agent Orange while serving in Vietnam. The Veteran stated that he did not experience lower leg problems until 1990. He thought that his leg problems were a combination of age and that the Naval requirements dictated that he maintain certain physical fitness standards. In an addendum to the Notice of Disagreement, the Veteran reported that he has experienced leg nerve problems since 1991 or 1992. During the Veteran’s Board hearing, he said that he first realized he was having problems with numbness in 1990. He said he started having trouble with his legs, but at that point, he blamed it on doing too much running and playing and getting old. He testified that he can only walk now on a hard surface and if he walks on grass, he will fall. He said his doctor told him at some point, the neuropathy is going to attack his arms and hands. The Veteran said that he uses a walker now and eventually he may need to use a wheelchair. Additionally, he said that he has blood clots in his legs and his legs are numb. The Veteran’s wife testified that she realized the Veteran was complaining about tingling feeling in his legs approximately 15 years ago. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a peripheral neuropathy of the lower extremities. The reasons follow. As to evidence of a current disability, an October 2018 letter from Jerome Lopez, M.D. shows that the Veteran was diagnosed with sensorimotor axonal polyneuropathy. Therefore, the Veteran meets the first element of a service-connection claim. As noted above, the Veteran has asserted that his disability was caused by exposure to Agent Orange while serving in Vietnam. The Board notes that the Veteran served in Vietnam, and therefore, exposure to Agent Orange is presumed. However, the presumption of service connection due to Agent Orange exposure for early-onset peripheral neuropathy is warranted only when the peripheral neuropathy manifested to a compensable degree within one year after the last date upon which the veteran was exposed to Agent Orange during active service. 38 C.F.R. § 3.307(a)(6). As noted above, the Veteran reports that his bilateral peripheral neuropathy in the lower extremities began between 1990 and 1992. However, the first reports of symptoms related to neuropathy were documented in the private medical records from Jimmy Edmond, M.D. in August 2008 and in the Veteran’s VA treatment records in approximately July 2010, which is approximately 16 years after the Veteran’s active service (in 1992) and more than 35 years since his exposure to Agent Orange while serving in Vietnam (which exposure last occurred in 1969). As the Veteran’s peripheral neuropathy in the lower extremities did not have an onset within one year of discharge from service or within one year of the last date of exposure to Agent Orange and his claims file does not document ongoing symptomatology since service, service connection as due to exposure to Agent Orange and based on the chronic disease presumption is not warranted. Service connection for bilateral peripheral neuropathy of the lower extremities may still be granted on a direct basis. As to evidence of an in-service disease or injury, the service treatment records do not show a disease or injury to or in the lower extremities during service. For example, the Veteran had examinations throughout his time in service. The annual Reports of Medical Examination from July 1972 through August 1983 show that the Veteran was clinically normal in the areas of the lower extremities and neurologic system. Reports of Medical Examination from July 1987, September 1988, July 1989, October 1990, and March 1992 document the same normal clinical evaluations involving the lower extremities and the neurologic system. A July 1972 Report of Medical History shows that the Veteran indicated that he had cramps in his legs but specifically denied ever having or having then lameness; neuritis; and paralysis. The service treatment records show that the Veteran had a fractured fifth metatarsal on his right foot in October 1981. He was placed in a cast and reported his foot felt much better. Although the Veteran reported that he had leg cramps in the July 1975, August 1983, July 1987, and November 1988 Officer Physical Examination Questionnaires, he said he did not have or had not had recently lameness; weakness; difficulty in walking in the dark; balance problems; and numbness and tingling in extremities. Furthermore, the Veteran reported he did not have leg cramps; muscle pain or cramps; lameness; weakness; he did not have or recently had difficulty in walking in the dark; balance problems; and numbness and tingling in extremities in his Officer Physical Examination Questionnaires from June 1973, July 1974, August 1978, August 1979, 1982, August 1981, August 1985, September 1988, July 1989, September 1990, and March 1992. In July 1987, the Veteran reported he has leg cramps one to two hours after basketball. In November 1988, the Veteran reported that his leg cramps occurred after exertion. As such, while exposure to AO/herbicides is found to have occurred during service, the preponderance of the evidence is against a finding that the Veteran had neuropathy during service. Statements made contemporaneously with the time period in question tend to be highly reliable. Thus, the Board finds no reason to question the accuracy of what the Veteran documented in the Reports of Medical History and Officer Physical Examination Questionnaires, when he denied experiencing lameness; weakness; difficulty in walking in the dark; balance problems; and numbness and tingling in extremities while in service. These documents alone refute the Veteran’s allegation of onset of his peripheral neuropathy between 1990 and 1992, and the Board finds that the Veteran’s disability did not have its onset during service. Therefore, the Board finds that such statements as to the onset of the Veteran’s disability between 1990 and 1992 are not credible. Additionally, the evidence of record does not demonstrate that the Veteran’s symptoms have been continuous since separation from service in June 1992, which further supports the finding that neuropathy did not have its onset during service. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). For example, the Veteran has been treated by VA since February 2006. At that time, the Veteran complained of pain related to an abdominal aortic aneurysm. More importantly, the Veteran had been seen by Jimmy Edmond, M.D. beginning in April 2007. The Veteran saw Dr. Edmond in April 2007, May 2007, July 2007, August 2007, October 2007, February 2008, March 2008, April 2008, and June 2008, where Dr. Edmond wrote down a “Problem list” at each visit, which did not include neuropathy. For instance, when Dr. Edmond first saw the Veteran in April 2007, the “Problem List” included hyperlipoproteinemia, rheumatoid arthritis, abdominal aneurysm without mention of rupture, essential hypertension, and myalgia. A physical examination performed at that time showed Dr. Edmond wrote that the “Neurological examination is negative.” As stated above, Dr. Edmond wrote a “Problem List” every time he saw the Veteran, and the first time that “Neuropathy” was documented as part of the “Problem List” was in the August 2008 treatment record after Dr. Edmond had seen the Veteran on multiple occasions (listed above) for more than one year, including in June 2008 (two months prior). In these medical records, when the neurological examination was documented, it was consistently documented as normal, which is documented in the April 2007, May 2007, July 2007, August 2007, October 2007, February 2008, March 2008, April 2008, and June 2008 treatment records. Thus, during nine physical examinations, Dr. Edmond did not find that the Veteran had neurological symptoms. In the July 2007, August 2007, October 2007, February 2008, March 2008, April 2008, and June 2008 records, when performing a “Review of Systems,” Dr. Edmond wrote, “Neurologic [review of systems] is negative.” A review of systems was not documented in the April 2007 and May 2007 treatment records. This is not a situation where these medical records are silent for neurological symptoms, but a medical professional documented the absence of neurological symptoms during a physical examination, which is affirmative evidence that the Veteran did not have neurological symptoms from April 2007 to June 2008. What the Board can construe from these records is that the Veteran was not complaining of neurological symptoms from April 2007 until August 2008, after denying a past history of neurological symptoms and Dr. Edmond finding that neurological examination was negative from April 2007 to June 2008, which conclusion was documented on nine occasions in the medical records. Dr. Edmond added diagnoses to the “Problem List” as the Veteran complained of more symptoms/disabilities. The fact that the Veteran was seen by this same physician for more than one year, and this physician performed nine physical examinations before the Veteran complained of neuropathy and while denying a past history of neurological symptoms, is evidence against neuropathy existing since service discharge in June 1992 or in the years following service discharge. The evidence shows that the Veteran’s neuropathy in the lower extremities was first documented in 2008. The absence of post-service complaints, findings, diagnosis, or treatment for approximately 16 years after service is one factor that tends to weigh against a finding of continuous symptoms since separation from service. The Veteran sought treatment for multiple other medical complaints during this time frame, including an abdominal aortic aneurysm and rheumatoid arthritis. The Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence. A prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. As stated above, Dr. Edmond did not find neurological symptoms from April 2007 to June 2008, which places on the onset of peripheral neuropathy approximately 16 years after service. The Veteran submitted a private medical opinion from Jerome Lopez, M.D. in October 2018, wherein the medical professional concluded that the Veteran’s peripheral neuropathy is related to his exposure to Agent Orange in service. However, Dr. Lopez wrote that the Veteran’s neuropathy symptoms began in the early 1990s. As this opinion is based on an inaccurate medical history reported by the Veteran, which the Board has explained above is not credible, this medical opinion does not assist the Veteran in his claim for service connection for peripheral neuropathy. A medical opinion based on an inaccurate factual history has no probative value. The Board is aware of the Veteran’s contentions that his current peripheral neuropathy is a result of his time in service, to include as being due to Agent Orange or herbicides exposure. However, the Veteran is not competent to offer opinions as to the etiology of his current peripheral neuropathy to service and Agent Orange. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. At the present time, there is no competent and credible evidence that the Veteran’s peripheral neuropathy had its onset in service, within one year following service discharge, or is otherwise related to service, to include Agent Orange/herbicide exposure. The undersigned truly searched through the claims file to see what the evidence showed and did not find that the evidence supported a finding that neuropathy of the lower extremities was related to service. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the claim for service connection for peripheral neuropathy of the lower extremities. Thus, as the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, 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.