Citation Nr: 21003224 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 12-33 642A DATE: January 21, 2021 ORDER Entitlement to service connection for peripheral neuropathy in both feet, to include as due to exposure to herbicide agents is denied. FINDINGS OF FACT 1. The Veteran’s first period of military service from August 1965 to January 1969 included a tour of duty in Thailand from October 1966 to September 1967, where his service at Ubon Royal Thai Air Force Base (RTAFB) involved duties that placed him at the base perimeter and exposed him to herbicide agents. 2. The Veteran’s peripheral neuropathy of both feet was not manifested during a period of his active duty service, within a year following his last exposure to herbicide agents, or within a year following his discharge from active duty, and the preponderance of the evidence is against a finding that it is etiologically related to his service, to include as due to exposure to Agent Orange/herbicide agents. CONCLUSION OF LAW Service connection for peripheral neuropathy of both feet is not warranted. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from August 1965 to January 1969, December 1990 to July 1991, February 2003 to February 2004, and August 2005 to August 2006. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision. In September 2017, a Travel Board hearing was held before the undersigned; a transcript is in the record. In December 2017 and August 2019, the case was remanded for further development. Entitlement to service connection for peripheral neuropathy in both feet, to include as secondary to exposure to herbicide agents, is denied. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after discharge when the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (listed in 38 C.F.R. § 3.309(a)) may be presumed to have been incurred or aggravated in service, if manifested to a compensable degree within a specified period of time postservice. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309(a), service connection may be established by showing continuity of symptomatology after discharge. 38 C.F.R. § 3.303(b). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has alleged, in part, that his peripheral neuropathy disability he seeks to have service connected, may be due to his exposure to herbicides during his service in Thailand. “Early onset” peripheral neuropathy may be presumed to be service connected as due to exposure to herbicide agents in service if manifested in a Veteran who served in Vietnam during the Vietnam Era. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). The presumptive provisions of 38 U.S.C. § 1116 have been extended to encompass Veterans shown to have been otherwise exposed to tactical herbicides in service, including while serving in Thailand, or on the DMZ in Korea. VA, in a December 2015 memorandum, conceded the Veteran was exposed to herbicide agents while serving in Thailand. When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). On November 1968 service separation examination, the Veteran’s endocrine system, lower extremities, neurologic system, and feet were normal on clinical evaluation. A July 1969 VA treatment record notes that on neurological examination, the Veteran’s gait and station were normal, his coordination was good, the Romberg Sign was negative, deep tendon reflexes were present and equal, and no pathological reflexes were present. Sensation was intact, superficial reflexes were present, and no atrophy or paralysis was noted. No abnormal involuntary movements were present, and there was tenderness over the medial surface of the left knee. No neurological signs were present. October 1986 to December 1998 Reserve periodic evaluations note that the Veteran’s endocrine system, lower extremities, neurologic system, and feet were normal on clinical evaluation. On November 2003 post deployment assessment, the Veteran denied having swollen joints or numbness or tingling in his hands or feet. September 2005 STRs note that the Veteran experienced acute renal failure and was medically evacuated from Iraq. He reported that he was lightheaded and had an episode of near syncope. His main complaint was fatigue, and it was noted that he was dehydrated. He reported an episode of severe left foot throbbing pain while trying to sleep. The pain was over the lateral dorsal aspect of midfoot. On follow up evaluation, the foot pain had improved, and he had normal sensations and full range of motion. He was placed on light duty for 30 days and directed to elevate and ice his left foot for 10 minutes 3 times a day for 5-7 days. A September 2005 STR notes that the most recent labs for BUN and creatinine were within normal limits, and the impression was that the Veteran’s dehydration had resolved. On September 2005 post deployment assessment, the Veteran reported weakness, dizziness, lightheadedness, and fainting, and that he was sent home early for medical reasons. A July 2006 post deployment health assessment notes that the Veteran reported his health as excellent and that he was in theater from November 2005 to January 2006. He reported having no weakness, numbness or tingling in hands or feet, dizziness, fainting, or lightheadedness. An August 2008 neurology study report notes that the Veteran reported having foot pain for the last nine months. Nerve conduction and EMG studies on both lower extremities showed right and left sural sensory nerve action potentials demonstrated normal peak latencies and normal amplitudes. Right and left peroneal and tibial compound muscle action potentials demonstrated normal onset latencies, normal amplitudes and normal conduction velocities. Needle EMG showed reduced recruitment in the right tibialis anterior, gluteus maximus, and medial gastrocnemius. The findings were that it was an abnormal study due to electrophysiologic evidence of a chronic L5 radiculopathy without active denervation. A June 2009 VA treatment record notes that the Veteran reported an increase in his right foot sensitivity. He related that walking and touching his foot hurt, and that it sometimes felt like he was walking on glass. An August 2009 private treatment record notes that the provider indicated that the signs and symptoms were characteristic of small fiber polyneuropathy, and given the Veteran’s history of elevated hemoglobin A1C, the most likely cause was diabetic polyneuropathy. An August 2009 private treatment record notes that the Veteran reported burning pain, numbness, and tingling in both feet for almost one year. An August 2009 private treatment record notes that EMG and NCV findings showed diffuse neurogenic changes affecting both sensory and motor fibers symmetrically in the lower extremities and would be consistent with a mild mixed axonal demyelinating sensorimotor peripheral neuropathy. The provider opined that the etiology of the neuropathy was uncertain and can be associated with a variety of toxic, metabolic, and nutritional disorders. A September 2009 private treatment record notes that the Veteran reported having sensitive feet and numbness, and that he took Lisinopril for foot pain. An electromyogram confirmed mixed sensorimotor axonal and demyelinating polyneuropathy consistent with diabetes. The impression was mild diabetic polyneuropathy. A December 2009 private treatment record notes that the Veteran reported continuing foot numbness. A July 2011 VA treatment record notes a diagnosis of peripheral neuropathy in the Veteran’s legs and feet. On November 2011 VA examination, the Veteran reported a “pins and needles” type of feeling greater in the right foot than the left in a stocking-type distribution starting just distal to the ankle in both feet and extending forward to include all toes. The diagnosis was peripheral neuropathy. The examiner did not opine regarding the etiology of the disability because the Veteran’s C-file was not available for review. In a November 2011 addendum, the examiner opined that it is less likely than not that the Veteran’s currently diagnosed peripheral neuropathy is related to the kidney failure noted in his STRs, as peripheral neuropathy from acute kidney failure would not be expected to continue once the kidney failure had completely resolved. He noted that a civilian neurologist had related the neuropathy to elevated blood sugars, but indicated that there was no evidence that the Veteran had diabetes on active duty or at present. A June 2012 VA treatment record notes that the Veteran reported that his neuropathy was worsening. He related that his doctors had not diagnosed diabetes because they did not feel his blood glucose levels were high enough. A November 2014 VA treatment record notes an assessment of polyneuropathy and that the Veteran had no confirmed diagnosis of diabetes but had insulin resistance. At the September 2017 Travel Board hearing, it was noted that there was a diagnosis of peripheral neuropathy in the record. The Veteran testified that in 2005, during deployment to Iraq, his kidneys shut down due to dehydration and he was sent back to the states for treatment, and that he then started to feel discomfort in his feet. He mentioned it to the provider; treatment for his kidney issue was continued, and he was sent back overseas. He related that he has been treated yearly for foot discomfort and was taking medicine for sleep nightly because his feet got hot when he tried to sleep. On February 2018 VA nerve examination, the diagnosis was bilateral sensorimotor peripheral neuropathy. The Veteran reported that the numbness in his feet started shortly before his discharge from military service in approximately 2006. He reported that he mentioned pain in his feet a couple of times and was told to “rest his feet and loosen his boots.” The Veteran reported that his symptoms had been stable overall over the past several years. He reported numbness and weakness in both feet, burning pain in his toes, bilaterally, and that his feet were very sensitive to touch. The examiner opined that the Veteran’s neuropathy was less likely than not related to his service, and specifically to Agent Orange exposure. She noted that although it was conceded that he was exposed to Agent Orange, there was no record that he had any neuropathy symptoms after his first period of active service, and he did not claim to have experienced the neuropathy symptoms until approximately 2006. She noted that the Veteran’s STRs show that the first time he reported his neuropathy pain was when he was admitted for acute renal failure in 2005. He complained of left foot pain and the provider did not provide a diagnosis but instructed the Veteran to be on light duty, elevate/ice as needed, loosen boot laces, and follow up as needed. The examiner noted that she could not say without resort to mere speculation that the complaints of left foot pain were due to neuropathic pains or that his neuropathy is due to any injury, disease, or event during his periods of active duty service. Regarding the likely etiology of the Veteran’s neuropathy, the provider indicated that he did not have any obvious outstanding cause (he was not diabetic, had no history of alcoholism, no vitamin deficiencies, was HIV/HCV negative, and did not have thyroid disease, etc..); therefore, the likely etiology appeared to be overall idiopathic in nature. In a November 2019 VA opinion, the provider opined that it was less likely than not that the Veteran’s peripheral neuropathy is related to his service. He noted that a review of the records found that a July 2006 separation examination did reveal neuropathy in any extremity, an August 2009 neurology consult noted that the most likely etiology of the neuropathy was o diabetes, an August 2009 EMG showed mixed sensory and motor demyelinating neuropathy of the lower extremities, a July 2011 VA treatment record noted diabetic neuropathy, (which the Board notes was mild diabetic polyneuropathy, most likely diagnosed by his neurologist) and other VA treatment records noted insulin resistance and elevated A1C levels. The provider opined that the etiology more likely for the Veteran’s neuropathy was considered to be diabetic in origin. He noted that the treatment records indicate several different claim associations of neuropathy to herbicides, renal disease and poor fitting shoes. He specifically noted an August 2009 private neurology consult indicating that the most likely etiology for the Veteran’s neuropathy was diabetes. The provider indicated that, while [the diagnostic criteria for diabetes are not met by medical records in the file], impaired glucose intolerance is a continuum and (postservice) medical records do support there were elevated A1Cs and a diagnosis of insulin resistance. A nexus to other etiologies is not established in the service medical records. The Veteran’s STRs are silent as to any reports, findings, treatments, or a diagnosis of peripheral neuropathy of the feet. However, September 2005 STRs do note treatment for dehydration for acute kidney failure and dehydration and note that the Veteran reported throbbing left foot pain. On September 2005 post deployment assessment, the Veteran reported weakness, dizziness, lightheadedness, and fainting, and that he was sent home early for medical reasons. However, a January 2006 post deployment health assessment notes that he reported he had no numbness or tingling in his hands or feet, and a July 2006 post deployment health assessment notes that he was in theater from November 2005 to January 2006 and reported his health as excellent He denied having weakness, numbness or tingling in hands or feet, and dizziness, fainting, or lightheadedness. It is not in dispute that the Veteran now has peripheral neuropathy in both feet. It is also well-established in the record that he served in Thailand, and is presumed to have been exposed to herbicide agents by virtue of such service. The critical question remaining is whether there is competent evidence of a nexus between his service and the peripheral neuropathy in both feet. There is no evidence that the Veteran’s peripheral neuropathy in the feet was manifested within a year following his last presumed exposure to herbicides in service in 1967. Peripheral neuropathy was not diagnosed until 2009, which is over 40 years from his last presumed exposure, and would not be considered an “early onset” peripheral neuropathy necessary for the presumption. Consequently, service connection for peripheral neuropathy of both feet on the basis that it became manifest in service and persisted or on a presumptive basis (a chronic disease under 38 U.S.C. § 1112 or as an early onset peripheral neuropathy under 38 U.S.C. § 1116) is not warranted. Whether current peripheral neuropathy of the feet may be related to remote service/an event therein under the circumstances shown is a medical question. The medical opinions in the record that address that question (those offered by November 2011 and February 2018 VA examiners and the November 2019 VA provider) are against the Veteran’s claim. They address separate aspects of the Veteran’s claim and are cumulatively entitled to substantial probative weight. In a November 2011 addendum the provider opined that it is less likely than not that the Veteran’s currently diagnosed peripheral neuropathy is related to his episode of kidney failure in service as peripheral neuropathy from acute kidney failure would not be expected to continue once the kidney failure had resolved. The February 2018 examiner noted that the Veteran’s exposure to Agent Orange has been conceded, and opined that the neuropathy was less likely than not due to such exposure because he had no neuropathy symptoms contemporaneous with his exposure to herbicide agents in service, and he did not claim to have experienced any neuropathy symptoms until he reported neuropathy pain when admitted for acute renal failure in 2005 (so it was not of early onset type). Regarding the likely etiology of his neuropathy, she opined that the Veteran did not have any obvious cause (he is not diabetic, has no history of alcoholism, vitamin deficiencies, HIV/HCV negative, or have thyroid disease, etc..) and therefore the neuropathy appeared overall to be idiopathic. And the November 2019 provider opined that the more likely etiology of the Veteran’s neuropathy was diabetic. She noted that while postservice medical records do not show findings diagnostic for diabetes, impaired glucose intolerance and elevated A1Cs support a diagnosis of insulin resistance. [Notably, the Veteran has not established service-connection for diabetes, and a claim of service connection for peripheral neuropathy as secondary to diabetes lacks legal merit.] The opinions reflect familiarity with accurate medical history and (cumulatively) include rationale that cites to factual data/medical history and invokes medical principles. As there is no competent (medical opinion) evidence to the contrary (i.e., relating the Veteran’s neuropathy to his active duty service), the Board finds them persuasive. The Veteran’s own assertion that his peripheral neuropathy of the feet is etiologically related to his service is not competent and probative evidence. He is a layperson, and does not profess to have any medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007. [He is advised that if he establishes service connection for diabetes, such could be a basis for reopening this claim on a secondary service connection basis.] The preponderance of the evidence is against this claim; accordingly, the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.