Citation Nr: 21061727 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 14-05 280 DATE: October 5, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to Agent Orange exposure is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to Agent Orange exposure is denied. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to Agent Orange exposure is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to Agent Orange exposure is denied. FINDINGS OF FACT 1. The preponderance of the evidence establishes that the Veteran's claimed left upper extremity peripheral neuropathy disability was not present until more than one year following separation from service and is not etiologically related to active service to include as due to Agent Orange exposure. 2. The preponderance of the evidence establishes that the Veteran's claimed left lower extremity peripheral neuropathy disability was not present until more than one year following separation from service and is not etiologically related to active service to include as due to Agent Orange exposure 3. The preponderance of the evidence establishes that the Veteran's claimed right upper extremity peripheral neuropathy disability was not present until more than one year following separation from service and is not etiologically related to active service to include as due to Agent Orange exposure 4. The preponderance of the evidence establishes that the Veteran's claimed right lower extremity peripheral neuropathy disability was not present until more than one year following separation from service and is not etiologically related to active service to include as due to Agent Orange exposure CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to Agent Orange exposure have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for establishing entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to Agent Orange exposure have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for establishing entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to Agent Orange exposure have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 4. The criteria for establishing entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to Agent Orange exposure have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1962 to October 1966, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). Transcripts from the hearing are associated with the claims file. When this case was last before the Board in November 2020 it was remanded for additional development. Specifically, the RO was instructed to obtain a VA examination and medical opinion which complied with the Board's remand directives. A relevant opinion was obtained. As such, the Board finds that the AOJ substantially complied with the directives in the November 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting a decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or does not show, as to the claim. Bilateral Upper and Lower Extremity Peripheral Neuropathy At the outset, the Board notes that the essential facts of the Veteran's claims for entitlement to service connection for his bilateral upper and bilateral lower extremity peripheral neuropathy disabilities are essentially identical. In addition, the resolution of these claims involves the application of identical law to similar facts. As such, in the interest of judicial economy these issues will be addressed together. The Veteran seeks service connection for his peripheral neuropathy conditions which he contends are the result of his service, to specifically include as due to Agent Orange exposure. The Board notes that only early-onset peripheral neuropathy is presumptively related to herbicide exposure. 38 C.F.R. § 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran 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 Veteran is currently diagnosed with unspecified polyneuropathy as shown in his January 2021 VA Peripheral Nerves Conditions examination. Therefore, the central issue to be resolved is whether the current disabilities originated in service or are otherwise related to service. Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378 (Fed. Cir. 2000). While the Veteran has currently diagnosed disabilities, the Board finds that competent medical evidence of record does not support a finding that his neuropathy disabilities were incurred in service, manifested within a year of service, or are otherwise related to service. Initially, the Board notes that the Veteran's service treatment records (STRs) contain no complaints of, or treatment for, peripheral neuropathy or symptoms thereof. The Board does note that an October 1966 record from the Veteran's STRs indicated that he was transferred to a medical facility via Aeromedical Evacuation from Vietnam due to "Cellulitis and Lymphangitis" of the right foot. After 10 days of treatment, the Veteran was discharged as fit for duty. Further, the Veteran's STRs indicate that he slammed a car hood on his hand in February 1965 and was diagnosed with an abrasion and a bruise. A March 2004 VA treatment record indicated that the Veteran had weakness in his right hand of an unknown etiology. An August 2009 Neurosurgery consult indicated that the Veteran developed numbness and tingling in his hands and feet over the past two months which were sporadic lasting a few hours. The Veteran was first diagnosed with bilateral upper and lower extremity peripheral neuropathy from an October 2009 EMG study. Though the Board notes that in a March 2010 treatment record which included a MRI and an EMG/nerve conduction study, the EMG results were noted as essentially normal, and the examiner did not document any complaints of neuropathic symptoms in the Veteran's limbs. Additionally, during an October 2009 Neurology consultation, the Veteran reported that tingling in his hands and feet began "six months ago." Further, an October 2009 treatment note indicated that the numbness in the Veteran's extremities could represent neuropathy "especially given his history of low B12 in the past and hypothyroidism." Later VA and private treatment records document complaints of tingling and numbness in the upper and lower extremities and continue to diagnose the Veteran with neuropathy. The Veteran submitted a lay statement wherein he indicated that he had pain in his legs since returning from Vietnam and that he sought treatment in 1974 where he first heard the term neuropathy. The Veteran indicated that his doctor told him he would just have to live with it, and he did not know about his condition's association with Agent Orange. Further, the Veteran submitted a lay buddy statement from a fellow servicemember who indicated that he witnessed the Veteran have trouble with his feet in service and witnessed him struggle while returning to the hill they were stationed at. The buddy statement continues that the Veteran was medevac'd out due to a foot problem and that when they met again in Okinawa the Veteran was struggling with his legs. During his October 2016 Board Hearing, the Veteran testified that he had problems with his right leg while he was in Vietnam and was sent to a hospital in Guam for treatment. The Veteran also testified that he experienced numbness in his legs immediately upon exiting service, specifically in his ankles where he believed the numbness began. The Veteran continued that now, in present day, he is experiencing numbness in his arms and legs. The Veteran also testified that one of his doctors opined in writing that his peripheral neuropathy was etiologically related to his Agent Orange exposure. However, the Board notes that the references to Agent Orange exposure in his medical records are the physicians recording that the Veteran related his condition to Agent Orange, and that none of the physicians actively opined the Veteran's exposure to Agent Orange was related to his current neuropathy. In response to the Board's December 2017 Remand, the Veteran was provided with a February 2019 VA Peripheral Nerves Conditions examination. The examiner diagnosed the Veteran with unspecified polyneuropathy. During the examination, the Veteran reported pain, tingling, numbness, and fatigue in his upper and lower extremities. The examiner opined the Veteran's neuropathy was less likely than not (less than a 50 percent probability) related to his active military service, to include his in-service exposure to herbicide agents. In support of this opinion, the examiner stated that the Veteran's peripheral neuropathy did not manifest to a degree of 10 percent or more within a year after the last date on which he was exposed to an herbicide agent during active military service, as required under 38C.F.R. §3.307(a)(6). Further, the examiner noted that though the Veteran had been extensively evaluated by primary care providers, neurologists, and neurosurgeons, the etiology of his peripheral neuropathy had not been determined. Additionally, the examiner indicated it was "theoretically possible" that the Veteran's peripheral neuropathy could be related to his history of gastrointestinal procedures In a July 2019 decision, the Board found the February 2019 examination inadequate for adjudication purposes as the examiner failed to provide an adequate rationale by concluding that the Veteran's neuropathy was not directly related to herbicide exposure solely because there was no presumption of service connection. Additionally, the Board noted that the examiner indicated the Veteran should undergo a Nerve Conduction Study and EMG test. So, the Board remanded the claim for a new medical opinion. In response to the Board remand, the Veteran was then provided with a January 2020 VA Peripheral Nerves Conditions examination. The examiner diagnosed the Veteran with upper and lower extremity peripheral neuropathy. During the examination the Veteran reported that he believed his condition was due to his Agent Orange exposure and reported first experiencing numbness and paresthesia in his legs in 1966. The Veteran also denied "going for sign of symptoms of pain or numbness in either upper or lower extremity treatment 1 year after service." The examiner opined that the Veteran's bilateral upper and lower extremity neuropathies were less likely than not (less than a 50 percent probability) etiologically related to his active duty service. The rationale provided was that there was no chronicity or consistency to support the Veteran's claim that his neuropathy is due to Agent Orange exposure. The examiner continued that the medical records are silent for left lower extremity symptoms until June 2003 when the Veteran reported to a VAMC emergency department with low back pain and pain down the left leg. Further the examiner noted that the Veteran was not diagnosed with neuropathy until the October 2009 EMG study. The examiner also noted that the Veteran's upper extremity neuropathy was most likely due to his prior degenerative changes of his cervical vertebrae. Finally, in her closing remarks, the examiner indicated that long term untreated hypothyroidism and B12 deficiency can contribute to or cause peripheral neuropathy. The examiner noted the Veteran has a history of hypothyroidism and B12 deficiency. The Board, in a November 2020 decision found the January 2020 examination to be inadequate as the examiner did not undertake a new EMG/Nerve Conduction study and did not opine why one would not be required, as instructed by the prior Board remand. Further, the examiner did not acknowledge the Veteran's lay statements indicating that he experienced numbness and tingling in his lower extremities since service and did not acknowledge the lay report from the fellow veteran who served with the Veteran. As such, claim was again remanded. In response to the Board remand the Veteran was provided a January 2021 VA Peripheral Nerves Conditions examination. The Veteran was again diagnosed with unspecified polyneuropathy. The examiner provided contradictory nexus opinions and did not explain why a current EMG study was not provided to the Veteran. As such, the AOJ sought an addendum to the February 2021 VA examiner's opinions to clarify the examiner's findings. A June 2021 Addendum to the January 2021 opinions were obtained. In the Addendum, the examiner indicated a review of the Veteran's lay statements, the lay buddy statement, and all progress/treatment notes. The examiner opined that the Veteran did not need a new EMG study as any findings would not address whether the Veteran had signs or symptoms of peripheral neuropathy from the 1960s. Further, the examiner noted that the Veteran was diagnosed with both a cervical and lumbar condition which can cause signs/symptoms of neuropathy/radiculopathy. The examiner opined that it was less likely than not (less than a 50 percent probability) that the Veteran's peripheral neuropathy manifested (i.e. was present even if not actually diagnosed) within one year of his herbicide exposure. The rationale provided was that while the Veteran was competent to attest to matters which he has firsthand knowledge, there were gaps in the information. The examiner noted that the Veteran had no complaints of upper/lower extremity symptoms in 2010 when he underwent a complete work up including an MRI/EMG/NCS for his symptoms of numbness in the perianal area. The examiner pointed to a March 2010 emergency care note wherein the Veteran reported onset of lower extremity weakness and paresthesias in the groin and perianal area approximately 2 and 12 weeks prior with no mention of numbness and tingling since the 1960s. The examiner noted that the Veteran reported feeling numbness and paresthesias in his legs since 1966 for the first-time 40+ years after he left active duty service. The examiner concluded that the available medical evidence does not support the Veteran's statement, and that no peripheral neuropathy was present within a year of the Veteran's service, even if it was not actually diagnosed. The examiner further opined that it is less likely than not (less than a 50 percent probability) that the Veteran's peripheral neuropathy was caused by, or otherwise etiologically related to, his active duty service, to include as due to Agent Orange exposure. The rationale provided was that the first documented complaints, treatment, or diagnosis of any of the signs/symptoms of neuropathy was in 2009, a 43-year gap from the Veteran's period of active duty service. The examiner continued that there is no current medical literature that supports the onset of peripheral neuropathy due to Agent Orange exposure 40+ years after the exposure. The examiner opined that no nexus can be established. The Board has considered the evidence of record. The Board notes that the VA examiners are medical professionals, competent to opine on the nature and etiology of the Veteran's claimed disabilities. Moreover, the examiners provided an analysis based upon both subjective and objective information to form an opinion based upon medical expertise. While the earlier VA examinations were not competent for adjudication purposes the Board affords the June 2021 Addendum opinion, significant probative weight. The Board has weighed the medical evidence, against the Veteran's lay contentions that his peripheral neuropathy disabilities are due to service. While the Veteran is competent to testify as to his symptoms, he is not competent to provide a medical opinion as to the etiology of the disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board finds the June 2021 Addendum, which opined against a link between his diagnosed disabilities and service, to be of high probative value. Additionally, the Board notes that the Veteran was not diagnosed with peripheral neuropathy until 40+ years after he left active duty service. Additionally, the Board notes that in his medical treatment records the Veteran gives differing reports as to the onset of his symptoms. For example, the August 2009 neurosurgery consult where the Veteran reported numbness and tingling for the past two months, and the October 2009 neurology consult where the Veteran indicated his tingling in his hands and feet began six months prior. The Board finds that his earlier statements made seeking treatment are more probative than his statements made during the course of seeking disability compensation. See Cartwright v. Derwinski, 2 Vet. App. 24 (1991). In light of the above discussion, there is no evidence that the Veteran sought treatment for or was diagnosed with peripheral neuropathy while in service, or within a year after service, and there is no medical opinion in the record linking a current disability to active duty service, to include as due to Agent Orange exposure. Therefore, the Veteran's claim must be denied. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral upper and lower extremity peripheral neuropathy. Therefore, the claims must be denied. As the preponderance of the evidence is against the claims, the doctrine of reasonable doubt is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.