Citation Nr: 21003095 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-20 154 DATE: January 19, 2021 ORDER Entitlement to service connection for chronic inflammatory demyelinating polyradiculoneuropathy is granted. FINDING OF FACT The Veteran’s chronic inflammatory demyelinating polyradiculoneuropathy is attributable to herbicide agent exposure in service. CONCLUSION OF LAW The criteria for service connection for chronic inflammatory demyelinating polyradiculoneuropathy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1963 to February 1967, including service in the Republic of Vietnam during the Vietnam War era. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the matter in January 2019 and September 2020. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection for a claimed disability on a direct basis, there must be competent evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted on a presumptive basis if a Veteran was exposed to an herbicide agent during active military, naval, or air service in Vietnam, even though there is no record of such disease during service. Certain listed diseases shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall 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. The term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313. Notwithstanding the foregoing presumption provisions for herbicide agent exposure, a Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection may also be established by evidencing a chronic disease in service, which requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required. Id. The provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when the evidence establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection for chronic inflammatory demyelinating polyradiculoneuropathy is granted. The Veteran contends that his condition may be due to exposure to herbicide agents in service. Turning to the record, the evidence reflects that the Veteran satisfies the first two elements of establishing service connection. In the most recent VA examination of October 2020, the examiner confirmed a current diagnosis of chronic inflammatory demyelinating polyradiculoneuropathy. Second, the Veteran’s military personnel records reflect that an April 1965 temporary duty order assigned him to Vietnam on an operation from December 1965 to September 1966. A Veteran who, during active military 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. 38 C.F.R. § 3.307(a)(6)(iii). As the Veteran’s dates of Vietnam service fall between January 9, 1962 and May 7, 1975, exposure to herbicide agents is presumed. 38 C.F.R. §§ 3.307(a)(6)(iii). Thus, the first two elements have been satisfied. The question before the Board is whether the evidence establishes that the Veteran’s chronic inflammatory demyelinating polyradiculoneuropathy is related to service. Although the evidence establishes that the Veteran has a current diagnosis of chronic inflammatory demyelinating polyradiculoneuropathy and is presumed to have been exposed to herbicide agents in service, such disease would have needed to 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 service in order for presumptive service connection to be warranted. The record reflects that a year from the date that the Veteran is presumed to have been last exposed to the herbicide agents is December 1966. The medical evidence reflects that the Veteran’s disease first became manifest at the earliest ascertainable date of 1989. Thus, such date disqualifies the Veteran from establishing presumptive service connection. However, as noted above, the Veteran is not precluded from establishing direct service connection. Combee, 34 F.3d at 1042 (Fed. Cir. 1994). Thus, the question is whether the evidence establishes a link between the Veteran’s current disability and his service, which can be resolved by review of the competent medical evidence. A June 1963 Report of Medical History for enlistment reveals that the Veteran did not report any arthritis, tricked or locked knee, foot trouble, neuritis or paralysis. A June 1963 Report of Medical Examination for enlistment reveals normal findings upon clinical evaluation. A February 1965 service treatment record (STR) reveals a note of left ankle pain, adjust boots. A November 1965 Report of Medical History does not report foot or lower extremity issues. A November 1965 Report of Medical Examination reveals normal findings upon clinical evaluation. A February 1967 Report of Medical History for hardship discharge reveals that the Veteran did not report feet or lower extremities issues. A February 1967 Report of Medical Examination for hardship discharge reveals that the Veteran shows normal feet and lower extremities upon clinical evaluation. There are medical assessments of the possible etiology of the Veteran’s disability from the Veteran’s medical providers made during the course of his treatment. In 1996, the Veteran’s private doctor postulated that the disability may be related to a mild gammopathy. Then, in 2005, another private doctor postulated that the etiology of the disability was to due overuse of weakened muscles. However, the Board finds that these assessments were made to determine how to treat the disability rather than reasoned medical explanations of the etiology of the disability for VA compensation purposes. As such, while these assessments shed light on the nature of the disability, they do not rise to meet the level exploring and explaining the etiology of the disability as required by VA regulation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) However, there is medical evidence that does meet such requirement. The record reflects that there is an unfavorable medical opinion and a favorable medical opinion associated with the claims file, of which only the favorable opinion is adequate. The Veteran underwent a VA examination first in December 2019, in which the examiner rendered an unfavorable opinion. However, the Board found such opinion to be inadequate and remanded to the RO based on such inadequacy. The Veteran then underwent a VA examination in October 2020. The examiner confirmed a current diagnosis of chronic inflammatory demyelinating polyradiculoneuropathy and indicated that the Veteran reported weakness in his legs with numbness prior to this circa 1967 during service. The examiner opined that the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized that although the Veteran was diagnosed with chronic inflammatory demyelinating polyradiculoneuropathy in 1989, he endorsed recurrent neuropathy in his feet since the time of discharge from service. The examiner remarked that early onset of symptoms were noted by his wife, of which the symptoms were mild for years, but he did not develop functional limitations at work until 1989 which required him to seek neurologic evaluation. The examiner found that although the Veteran’s reports of developing functional limitations are not documented until 1989, which required him to seek neurologic evaluation, after considering his reports of early onset neuropathy as well as literature supporting neuropathy related to herbicide exposure, his current chronic inflammatory demyelinating polyradiculoneuropathy is at least as likely as not (50 percent or greater probability) incurred in or caused by service and herbicide exposure on active duty, of which the examiner cited a medical abstract as referenced by the Veteran’s representative. It is the Board’s duty as factfinder to assess the credibility and probative weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez, 22 Vet. App. at 304. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. Id. An opinion is adequate where it is based upon consideration of the Veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. D’Aries v. Peake, 22 Vet. App. 97, 104 (2008). An adequate medical examination must provide a rationale and explanation for its conclusions. Stefl v. Nicholson, 21 Vet. App. 120 (2007). It is a medical examiner’s responsibility to provide a well-supported opinion so that the Board may carry out its duty to weigh the evidence of record. Nieves–Rodriguez, 22 Vet. App. at 304. A medical opinion is not entitled to any weight if it contains only data and conclusions. Thus, the Board reviews the totality of the evidence to assess the value, if any, to be accorded to the medical evidence. First, the Board finds the factual basis of the rationale of the opinion to be adequate. Here, the Board finds that the October 2020 examiner reviewed the claims file, including medical records, lay statements, elicited sufficient information from the Veteran, as directed in the January 2019 Board remand, to determine the history of symptomology of the condition and applied reasoned medical analysis in rendering a clear conclusion. Illustratively, the examiner noted that the Veteran’s onset of symptoms to be circa 1967. Lay testimony is competent as to features or symptoms, but not etiology, of an injury or illness. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The examiner acknowledged that the Veteran did not seek treatment until the symptoms caused functional limitation. The Board finds that, although the record is void of a diagnosis of the condition within one year of service in Vietnam, the record indeed reflects that the Veteran did complain of left ankle pain which may corroborate lay statements. Still, the Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms. Barr v. Nicholson, 21 Vet. App. 303 (2007). Hence, the Board finds no reason to doubt the credibility of the lay statements herein and as such, credits the lay statements. Thus, the accuracy of the factual basis of the examiner’s opinion is not called into question. Second, and paramount, the Board notes that although the rationale of the opinion is not exceptionally well articulated, the Board declines to remand for further clarification because the Board finds that the report sufficiently informs the Board of the medical expert’s judgment on the medical question and the essential rationale for that opinion, and such rationale is easily discernable. Nieves-Rodriguez, 22 Vet. App. at 301. The examiner reasoned with consideration and acknowledgement based on the history of the condition in relation to lay statements, medical evidence and explanation that there is medical literature supporting neuropathy related to herbicide exposure. Hence, the Board finds the opinion to be adequate and thus affords the opinion significant probative value. Furthermore, there is no existing, probative medical opinion in the record to contradict the finding of direct causation and the Board has no basis to contradict the conclusion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board may not substitute its own medical judgement in trying to make sense of it. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). As such, as for whether there is a nexus between the in-service occurrence and the current disability, the Board relies on the October 2020 medical examiner’s opinion regarding the issue. Thus, resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for chronic inflammatory demyelinating polyradiculoneuropathy is warranted on a direct basis. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, 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.