Citation Nr: 21063137 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 11-10 012 DATE: October 13, 2021 ORDER Entitlement to service connection for neuropathy of the bilateral lower extremities, including as due to a service-connected disability or in-service exposure to an herbicide agent, is denied. FINDINGS OF FACT 1. The record evidence shows that the Veteran had active service in the Republic of Vietnam; thus, his in-service exposure to an herbicide agent is presumed. 2. The record evidence shows that the Veteran's current neuropathy of the bilateral lower extremities is not related to active service, including as due to in-service exposure to an herbicide agent, and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for neuropathy of the bilateral lower extremities, including as due to a service-connected disability or in-service exposure to an herbicide agent, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from February 1966 to February 1968, including in the Republic of Vietnam. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which denied, in pertinent part, a claim of service connection for neuropathy of the bilateral lower extremities, including as due to a service-connected disability or in-service exposure to an herbicide agent. In October 2017, June 2020, and in April and July 2021, the Board remanded the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. In the most recent remand, the Board directed that addendum opinions be obtained concerning the nature and etiology of the Veteran's neuropathy of the bilateral lower extremities. These opinions were obtained in August 2021. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board finds that the preponderance of the evidence is against granting the Veteran's claim of service connection for neuropathy of the bilateral lower extremities, including as due to a service-connected disability or in-service exposure to an herbicide agent. He essentially contends that he incurred this disability during active service and experienced continuous post-service disability. He alternatively contends that a service-connected disability caused or aggravated his neuropathy of the bilateral lower extremities. He also alternatively contends that in-service exposure to an herbicide agent while in Vietnam caused or contributed to his neuropathy of the bilateral lower extremities. The record evidence does not support his assertions regarding an etiological link between neuropathy of the bilateral lower extremities and active service, including as due to a service-connected disability or to in-service exposure to an herbicide agent. It shows instead that this disability is not related to service. The Board notes initially that, with respect to the assertion of in-service exposure to an herbicide agent, because the Veteran's DD Form 214 shows that he served in the Republic of Vietnam, his in-service exposure to an herbicide agent is presumed. See also Haas v. Peake, 525 F.3d. 1168 (Fed. Cir. 2008) cert. denied 129 S. Ct. 1002 (2009) (upholding as permissible VA's regulatory interpretation of "service in Vietnam" as requiring in-country duty or visitation in Vietnam). The Board next notes that, in a June 2020 opinion, a VA clinician opined that it was less likely than not that the Veteran's in-service exposure to an herbicide agent caused or contributed to his neuropathy of the bilateral lower extremities (which was characterized as generalized mixed sensory motor polyneuropathy). The rationale for this opinion was based on a review of the claims file which showed no evidence of early onset peripheral neuropathy during active service or within the first post-service year. This rationale suggests that the lack of evidence is persuasive support for the opinion itself. The Board notes in this regard that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Because the June 2020 opinion rationale violates the Court's holdings in Buchanan and Barr, it is inadequate for VA adjudication purposes and is not probative on the issue of whether the Veteran's presumed in-service exposure to an herbicide agent caused or contributed to his neuropathy of the bilateral lower extremities. In contrast, in an August 2021 opinion, a different VA clinician opined that it was less likely than not that the Veteran's in-service exposure to an herbicide agent caused or contributed to his neuropathy of the bilateral lower extremities (which was characterized as generalized mixed sensory motor polyneuropathy). The rationale for this opinion was based on a review of the claims file. The rationale also was based on a review of relevant medical literature which only showed "limited evidence of an associated between herbicide exposure and early onset of peripheral neuropathy that may be persistent within two years of exposure." The rationale further was that the Veteran's peripheral neuropathy symptoms "appeared more than 30 years after service." This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for neuropathy of the bilateral lower extremities as due to his presumed in-service exposure to an herbicide agent. Thus, the Board finds that service connection for neuropathy of the bilateral lower extremities on a presumptive basis as due to in-service exposure to an herbicide agent is not warranted. See 38 C.F.R. §§ 3.307, 3.309. The Veteran also is not entitled to service connection for neuropathy of the bilateral lower extremities, including as due to a service-connected disability. Despite the lay assertions to the contrary, the record evidence shows that this disability is not related to active service and was not caused or aggravated by a service-connected disability. The available service treatment records show that, at a pre-enlistment physical examination in October 1965, prior to his entry on to active service in February 1966, clinical evaluation of the Veteran was within normal limits. The Board again notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. The post-service evidence also does not support granting service connection for neuropathy of the bilateral lower extremities, including as due to a service-connected disability. It shows instead that, although the Veteran complained of and sought treatment for neuropathy of the bilateral lower extremities in the decades since his service separation, it is not related to active service and was not caused or aggravated by a service-connected disability. The Board notes initially that, because it previously found that medical nexus opinions dated in December 2017 and in April 2021 were inadequate for VA adjudication purposes, this evidence was not reviewed or relied upon in adjudicating the Veteran's claim. In an August 2021 opinion, a VA clinician opined that it is less likely than not that the Veteran's neuropathy of the bilateral lower extremities is related to active service, including as due to a service-connected disability. The rationale for this opinion was based on a review of the claims file. The rationale also was that the Veteran's neuropathy of the bilateral lower extremities (which was characterized as generalized mixed sensor motor polyneuropathy) had an unrelated pathophysiology to his service-connected disabilities. This clinician opined instead that, given the Veteran's history of tobacco use disorder and the absence of diabetes mellitus and other causes of peripheral neuropathy, his generalized mixed sensory-motor polyneuropathy is secondary to his tobacco use disorder. The rationale for this opinion was, "Smoking can affect your blood circulation and raise your risk of developing peripheral neuropathy. Peripheral neuropathy can begin slowly with just numbness and [t]ingling in the feet and progress according to the chronic toxic effects of [a] smoking habit." The clinician next opined that it was less likely than not that the service-connected TBI caused or aggravated neuropathy of the bilateral lower extremities. The rationale for this opinion was based on a review of the claims file. The rationale also was that a TBI is a condition related to central nervous system (CNS) injury and not to a peripheral nerve injury. The rationale further was that CNS pathologies such as a TBI "will only affect functions related to the central nervous system which include the brain and spinal cord and not the peripheral nerves." There also was no evidence of aggravation of the Veteran's generalized mixed sensory-motor polyneuropathy because his symptoms "are stable without progression since diagnosis." The clinician finally opined that it was less likely than not that the service-connected lumbosacral spine disability caused or aggravated neuropathy of the bilateral lower extremities. The rationale for this opinion was based on a review of the claims file. The rationale also was that the service-connected lumbosacral spine disability is "secondary to the atraumatic changes of the aging process." This opinion is the most probative evidence of record, as it is provided by a medical professional who supplied detailed rationales for the conclusions given. The most probative evidence shows that his current neuropathy of the bilateral lower extremities is not related to active service, including as due to a service-connected disability. It is undisputed that he complained of and sought treatment for neuropathy of the bilateral lower extremities in the decades since his service separation. It also is undisputed that service connection is in effect for multiple disabilities. Nevertheless, the VA clinician specifically opined in multiple discrete opinions dated in August 2021 that it was less likely than not that this disability is related to active service or a service-connected disability caused or aggravated it. All of these opinions were fully supported. See Stefl, 21 Vet. App. at 124. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to service connection for neuropathy of the bilateral lower extremities, including as due to a service-connected disability. In summary, the Board finds that service connection for neuropathy of the bilateral lower extremities, including as due to a service-connected disability or to in-service exposure to an herbicide agent, is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.