Citation Nr: 21061648 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-28 547 DATE: October 5, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the right lower extremity is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity is denied. FINDING OF FACT The preponderance of the most probative evidence is against finding that the Veteran's right or left lower extremity peripheral neuropathy was demonstrated during service or within one year of separation from service, that the disorder is etiologically related to the Veteran's active duty service, or that it manifested with early-onset peripheral neuropathy. CONCLUSIONS OF LAW 1. The criteria for service connection for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from February 1967 to October 1970. This case come before the Board of Veterans' Appeals (Board) from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office. The case was previously remanded by the Board in March 2019, May 2020, and June 2021. Right and Left Lower Extremity Peripheral Neuropathy The Veteran contends that he has right and left lower extremity peripheral neuropathy that began in service and/or was caused by exposure to herbicide agents in service. The Veteran has submitted numerous statements describing how he was stationed in Vietnam in 1968 and 1969, where he was frequently exposed to Agent Orange. He has written that since 1968, the bottoms of his feet were very hard and non-feeling. He wrote that when he lived in California, he would walk on the beaches, and for 19 years he lived in Florida and used to walk on hot beaches without even realizing the sand was hot. He wrote that it was only in 2002 that he began to realize that he had serious problems with his feet, and at that time he was diagnosed with Charcot foot. He wrote that later in 2008, he was also diagnosed with peripheral neuropathy, which was the cause of his foot problems. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Veterans who 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 to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The disorders that are presumed to have been caused by exposure to herbicide agents include early-onset peripheral neuropathy. 38 C.F.R. §§ 3.307, 3.309. The requirement that neuropathy (for presumptive acute and subacute peripheral neuropathy) must resolve within two years under 38 C.F.R. §§ 3.307(a)(6), 3.309(e) was revised effective September 6, 2013. 78 Fed. Reg. 54763 (Sep. 6, 2013). It was noted that the National Academy of Sciences (NAS) had determined that the evidence did not support an association between herbicide exposure and delayed-onset peripheral neuropathy, defined as having its onset more than one year after exposure. VA has also determined that chronic peripheral nervous system disorders such as late-onset peripheral neuropathy, have no positive associated with herbicide exposure, and the presumption is limited to "early-onset" peripheral neuropathy. Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Direct service connection may be established by evidence demonstrating that the disability was in fact incurred during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's service treatment records are negative for complaint, diagnosis, or treatment for peripheral neuropathy. In July 1970, the Veteran was treated for multiple abrasions and contusions from a motorcycle accident. He had swelling and lacerations on both legs. In August 1970, it was noted that he had been in a motorcycle accident one year earlier, and had a sore left ankle ever since. His October 1970 separation examination found normal feet and extremities. The Veteran's VA and private treatment records show that in November 2002, he was treated for a hole in his left foot. He was noted to have had prior treatment for plantar ulcers, and the Veteran reported having chronic ulcers and pain in his feet. It was noted that the Veteran had no diabetes, neuropathy, or other comorbidities. The Veteran's foot was erythematous and deformed, and he was diagnosed with bilateral Charcot foot. By June 2013, he was diagnosed with idiopathic peripheral neuropathy. At a February 2014 evaluation for Charcot feet, the Veteran reported that he had extensive treatment at other medical facilities for infections in his feet since 2008. He was diagnosed with Charcot's arthropathy and unspecified idiopathic peripheral neuropathy. In January 2014, he was treated for a wound on his left foot and an ulcer on his right foot. In February 2019, he developed an infected wound on his left foot, which eventually led to a below the knee amputation in May 2019. The Board acknowledges that the Veteran's VA treatment records show that he reported that his peripheral neuropathy was due to Agent Orange exposure on multiple occasions. In June and July 2013, the Veteran stated that he was exposed to Agent Orange and that this was suspected of causing his neuropathy. In February 2014, the Veteran also reported that he had peripheral neuropathy from Agent Orange. A February 2014 note, written by his treating physician regarding possible amputation, notes that the Veteran's Charcot feet were secondary to chronic peripheral neuropathy "thought to be secondary to Agent Orange exposure." The Board does not find that this constitutes a medical opinion, but is a recording of the Veteran's own lay reports, as he provided them to his medical providers. These notations therefore do not provide any probative evidence in favor of the claim. See LeShore v. Brown, 8 Vet. App. 406 (1995) (A bare transcription of lay history is not transformed into competent medical evidence merely because the examiner happens to be a medical professional.). Moreover, to the extent that the Veteran claims that the February 2014 note constitutes a medical nexus opinion, the notation is not supported by any supporting rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation). It is therefore afforded great probative weight in deciding the claim). In November 2016, the Veteran submitted a Disability Benefits Questionnaire completed by Dr. E.M. She wrote that the Veteran had peripheral neuropathy in all of his extremities, and his lower extremity peripheral neuropathy had left him without the ability to walk. She wrote that this was "Due to Agent Orange exposure." She wrote that the Veteran had exposure to Agent Orange in Vietnam, with subsequent progressive neuropathy in the bilateral feet leading to eventual amputations. The Veteran attended a VA examination in January 2020. He reported that his symptoms began in around 1970, and that they became worse in 1999, and that during that time his feet would become bloody when he would run. A VA medical opinion was requested, but because this examiner appeared to misrepresent the findings in the Veteran's service treatment records and did not acknowledge his lay reports of symptoms since 1968, this opinion was found to be inadequate, and the case was remanded for a new medical opinion. A new medical opinion was obtained in July 2020 from a physician assistant who reviewed the claims folder. She concluded that the Veteran's condition was less likely than not incurred in or caused by service. She discussed the Veteran's medical history, and found that while the Veteran noted that his foot was numb following service, there was no objective evidence of numbness or peripheral neuropathy symptoms of the feet until 2003, She wrote that the Veteran's peripheral neuropathy was diagnosed in 2008, many years after service and his last exposure to Agent Orange, and that there was no objective evidence to support mild incomplete paralysis of the lower extremities during service or within one year of separation. She further found that the Veteran's peripheral neuropathy or Charcot foot were less likely as not related to exposure to herbicide agents, explaining that there was no objective evidence to support Agent Orange as the cause of the Veteran's idiopathic peripheral neuropathy, and that there were many health conditions that could cause peripheral neuropathy, including autoimmune disease, medications, vitamin deficiencies, alcoholism, and infections. The examiner also discussed the Veteran's motorcycle accident in 1969, but found that it was less likely than not that it caused the Veteran's peripheral neuropathy or Charcot foot. She explained that the Veteran had acute lacerations, abrasions, ankle sprain, and LCL tear from the motorcycle accident, but that these conditions did not lead to the development of peripheral neuropathy or Charcot foot, as they did not affect the nerves. She wrote that the Veterans' peripheral neuropathy occurred many years after service and was unrelated to the motorcycle accident. The Board has reviewed all of the evidence of record, but finds that the preponderance of the most probative evidence weighs against the claim. While the Dr. E.M. did write in November 2016 that the Veteran's peripheral neuropathy was due to Agent Orange, she provided absolutely no rationale for this finding, and this greatly diminishes the probative value of this opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). The Board finds that the most probative evidence of record comes from the July 2020 VA medical opinion, which was provided by a competent medical professional who reviewed and discussed the Veteran's medical records, considered his lay statements, and provided a thorough rationale for her findings. See Nieves-Rodriguez, 22 Vet. App. at 304. She found that the Veteran's peripheral neuropathy was not related to service, including due to herbicide agents or his motorcycle accident, and did not manifest in or soon after service. There are no further medical opinions which the Board has not considered as which are contrary to the July 2020 findings. The weight of the most probative medical evidence is therefore against a finding that peripheral neuropathy of the lower extremities manifested during service, or that any other organic disease of the nervous system had manifested within one year of active service discharge. While the Veteran is shown to have had extensive service in Vietnam and his exposure to tactical herbicide agents is conceded, there is similarly no evidence of a diagnosis of early-onset peripheral neuropathy. Even without the presumption of association with herbicide agents, a direct medical opinion was obtained regarding whether herbicides such as Agent Orange caused the Veteran's peripheral neuropathy, but the most probative medical opinion, which is from July 2020, found that there was no such relationship. The evidence therefore weighs against the finding that his cancer is etiologically related to service including as a result of herbicide exposure Consideration has also been given to the Veteran's personal assertions that he believes his peripheral neuropathy was caused by exposure to Agent Orange in service. While lay persons are competent to provide opinions on some medical issues, the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disorder at issue is not a condition that is readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board acknowledges that the Veteran is competent to report observable symptoms, such as feeling like the bottom of his feet were very hard and numb, but he is not competent provide a specific diagnosis or to say that this sensation, experienced 50 years ago, constituted the onset of peripheral neuropathy at that time, nor is he competent to etiologically link his experienced symptoms to a current diagnosis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. His assertions are also not consistent with the medical evidence of record, which includes a November 2002 finding that he did not have any neuropathy at that time. Accordingly, the lay evidence does not constitute competent medical evidence and is outweighed by the VA medical opinion. The Board also acknowledges that the Veteran has argued that the restriction of the herbicide presumption to "early-onset" peripheral neuropathy is unfair, and that the presumption should be extended to peripheral neuropathy that manifests later in life. The Board, however, is bound by the law and regulations governing eligibility for presumptive service connection, and it has no power to change or bend these laws. See United States v. Locke, 471 U.S. 84, 95 (1985) ("The fact that Congress might have acted with greater clarity or foresight does not give courts carte blanche to redraft statutes in an effort to achieve that which Congress is perceived to have failed to do."). In conclusion, the Board finds that service connection for lower extremity peripheral neuropathy is not warranted. In reaching this determination, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. See 38 U.S.C. § 5107(b). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.