Citation Nr: 21062870 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 14-34 923A DATE: October 12, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the right lower extremity is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's peripheral neuropathy of the right lower extremity began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for 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. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1963 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in March 2019. A transcript of the hearing testimony has been reviewed and associated with the claims file. This case was previously before the Board in July 2019, December 2020, and June 2021 and was remanded each time for further evidentiary development. Entitlement to service connection for peripheral neuropathy of the right lower extremity Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed to herbicide agents, including Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases associated with exposure to 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, including early onset peripheral neuropathy. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Early onset peripheral neuropathy must manifest to a degree of 10 percent or more within a year after the last exposure to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(ii). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The claims file indicates that the Veteran was diagnosed with peripheral neuropathy of the right lower extremity in May 2012, and his current disability was confirmed in a July 2021 VA examination. Thus, the question before the Board is whether the evidence supports a medical nexus between his neuropathy and his active duty service. The Veteran's service treatment records are silent for complaints of, or treatment for, numbness or other peripheral neuropathy symptoms in the right lower extremity. His June 1967 separation examination and report of medical history are both silent for peripheral neuropathy. The Veteran's VA treatment records reveal that he complained of right foot pain in November 2003 and sought treatment for numbness in his right toe in April 2012. A May 2012 VA treatment record indicates that an electromyography (EMG) test showed sensory neuropathy in the right leg. During his March 2019 hearing, the Veteran testified that he began experiencing numbness in his right foot in the early 1970s. The Veteran underwent a VA examination in January 2021, wherein the examiner opined that his peripheral neuropathy is less likely than not related to his active duty service. She stated the Veteran's neuropathy is more likely than not post-surgical, caused by compression or stretching of nerves during surgery. In her rationale, the examiner pointed to the Veteran's June 2009 colon cancer diagnosis, April 2008 diagnosis of adenocarcinoma in situ of the rectum and subsequent surgical treatment, September 2016 bowel resection surgery, and a diagnosis of appendicitis in the 1980s as potential causes of his neuropathy. The Board found the January 2021 medical opinion inadequate in its June 2021 decision because the examiner did not consider the Veteran's testimony that his neuropathy symptoms began in the early 1970s. Notably, the Veteran's claimed symptoms predate the surgeries cited by the examiner as the source of his neuropathy. The Veteran underwent another VA examination in July 2021, and the examiner issued an addendum medical opinion in August 2021. The examiner opined that the peripheral neuropathy is less likely than not related to active duty service. In support of this opinion, the examiner stated that the Veteran's June 1967 separation examination was silent for any neuropathy or numbness and he did not report numbness in the right lower extremity until April 2012. The examiner also stated that, although the Veteran testified to experiencing lower extremity numbness in the early 1970s, there is no medical evidence documenting numbness or peripheral neuropathy prior to April 2012. The examiner also pointed out that the Veteran's neuropathy diagnosis occurred 45 years after his exposure to herbicide agents. Because of the lack of any medical evidence of neuropathy during or for years following the Veteran's service, the examiner indicated that a finding that the Veteran's neuropathy began during service or in the early 1970s would be purely speculation. After considering the relevant evidence, the Board finds that the preponderance of the evidence weighs against finding that the Veteran's peripheral neuropathy of the right lower extremity was incurred in, or is otherwise related to, his active duty service. First, the Board finds that presumptive service connection is not warranted based on the Veteran's exposure to herbicide agents. In order for the presumption to apply, a claimant's early onset peripheral neuropathy must manifest itself to a compensable degree within one year of the last exposure to herbicide agents. 38 C.F.R. § § 3.307(a)(6)(ii). The Veteran was not diagnosed with peripheral neuropathy of the right lower extremity until May 2012. Further, according to the Veteran's testimony, he did not experience numbness in his right lower extremity until the early 1970s, more than one year after his last in-service exposure to herbicide agents. Therefore, the weight of the evidence is against finding that his neuropathy manifested itself to a compensable degree within one year of his last exposure to herbicide agents and presumptive service connection is not warranted. See id. The Board also finds that service connection is not warranted on a direct basis. In this regard, there is insufficient evidence to establish that the Veteran's peripheral neuropathy is related to his active duty service. His service treatment records are silent for treatment for any neuropathy symptoms, and his separation medical examination and report of medical history are both negative for neuropathy. Following his separation from service, the Veteran did not seek treatment for right foot pain until November 2003 or right foot numbness until April 2012, both more than 35 years after his separation from active duty service. Additionally, as the July 2021 examiner noted, his neuropathy diagnosis was not rendered until 45 years after his last exposure to herbicide agents. Therefore, the weight of the evidence is against finding that the Veteran's peripheral neuropathy of the right lower extremity is related to his active duty service, including his exposure to herbicide agents. In reaching this decision, the Board has considered all relevant evidence of record, including the Veteran's March 2019 hearing testimony. Although he testified to experiencing numbness in his right lower extremity in the early 1970s, he has not been shown to have the medical training and knowledge necessary to render a medical diagnosis. See Layno, 6 Vet. App. at 470 (lay testimony is generally not competent to prove matters requiring specialized knowledge or training). As indicated by the July 2021 examiner, his subjective statements regarding numbness are insufficient evidence to establish a diagnosis of peripheral neuropathy in the 1970s. Therefore, the Board cannot use the Veteran's statements to establish an earlier onset date for his neuropathy. (Continued on the next page) In denying the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the Board finds that service connection for peripheral neuropathy of the right lower extremity is not warranted. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.