Citation Nr: 21003798 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-00 787 DATE: January 22, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the left lower extremity is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity is denied. FINDINGS OF FACT 1. The Veteran’s peripheral neuropathy of the left lower extremity disability did not have its clinical onset in service and is not otherwise related to active duty. 2. The Veteran’s peripheral neuropathy of the right lower extremity disability did not have its clinical onset in service and is not otherwise related to active duty. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for establishing service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1947 to June 1950 and January 1951 to October 1954 with the United States Navy, and on active duty service from August 1956 to March 1970 with the United States Coast Guard. Service in Vietnam has been conceded by VA, as noted in a March 2015 rating decision. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2013 rating decision of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). The Appellant is the Veteran’s surviving spouse. The Board was notified that the Veteran died in November 2018. That same month, the Appellant submitted her claim for substitution, to continue this claim on appeal. Subsequently, the Appellant was determined by the Agency of Original Jurisdiction to be an eligible party for substitution purposes. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. Entitlement to service connection for peripheral neuropathy of the left lower extremity and entitlement to service connection for peripheral neuropathy of the right lower extremity are denied. 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. “To establish a right to compensation for a present 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” the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). For these Vietnam War Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The lack of entitlement to presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran, or in this case the Appellant, from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994. The Board notes that the list of diseases associated with exposure to certain herbicide agents includes early-onset peripheral neuropathy. 38 C.F.R. § 3.309(e). As such, the Appellant can avail the Veteran of the presumptive provisions to establish entitlement to service connection for the claimed conditions. In this case, as described below in further detail, the Veteran has not been diagnosed with early-onset peripheral neuropathy, but instead was diagnosed with his current disorders many years after service. Accordingly, the presumptive provisions do not apply in this case. The Board will thus focus on the Veteran’s claim insofar as direct service connection is claimed. See Combee, supra. The Veteran sought service connection for peripheral neuropathy of the left lower and right lower extremities. At his September 2016 Decision Review Officer Hearing, he stated that he began experiencing symptoms about 10 years ago. Service treatment records (STRs) are silent for any treatment or complaints for leg or neuropathy conditions. A post-service VA treatment note, dated in May 2013, shows that the Veteran stated that he had trouble with his feet. He noted that he felt numbness and burning, and that it was like “walking on sponges”. A problem list, dated that same month, shows a diagnosis of bilateral lower extremity peripheral neuropathy. A private treatment note, dated in September 2016, shows that the Veteran complained of numbness and tingling in his feet. He noted that he felt like he was “walking on cushions”. He stated that he started developing symptoms shortly after his tour of duty. An assessment of polyneuropathy, peripheral sensorimotor axonal was provided. A VA medical opinion, dated in August 2020, reflects that after a review of the Veteran’s claims file, the VA examiner opined that, considering the timeframe of service and herbicide exposure guidelines, the Veteran’s claimed bilateral peripheral neuropathy was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner stated that bilateral peripheral neuropathy was not noted in the STRs, nor during the immediate 1 year, post service. Unfortunately, the Veteran did not have a diagnosis of peripheral neuropathy of bilateral lower extremity until June 2013, which was nearly 43 years later. After a review of the record, the Board finds that the preponderance of the evidence is against the claims for service connection for peripheral neuropathy of the left lower extremity and peripheral neuropathy of the right lower extremity disabilities. The record contains no competent opinion linking the Veteran’s claimed bilateral lower extremities conditions to his active service. The August 2020 VA opinion was based on an accurate medical history and provided an explanation that contained clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there is no medical opinion to the contrary. While the Veteran may have believed, and the Appellant does believe, that the Veteran’s left lower extremity and right lower extremity peripheral neuropathy disabilities were related to his military service, this has not been demonstrated, and neither the Veteran was, nor the Appellant has been, shown to have the requisite medical knowledge to be deemed competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, specifically the August 2020 VA examiner’s findings and opinion, and finds that the appeal must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claims, that doctrine is not applicable. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.