Citation Nr: 21063714 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 15-32 550 DATE: October 15, 2021 ORDER Entitlement to service connection for left lower extremity peripheral neuropathy, as due to Agent Orange exposure, is denied. Entitlement to service connection for right lower extremity peripheral neuropathy, as due to Agent Orange exposure, is denied. FINDINGS OF FACT 1. The Veteran is not shown to have manifested findings of peripheral neuropathy of the left lower extremity in service or within a year after service. 2. The Veteran is not shown to have manifested findings of peripheral neuropathy of the right lower extremity in service or within a year after service. CONCLUSIONS OF LAW 1. The criteria for service connection for left lower extremity peripheral neuropathy, as due to Agent Orange exposure, have not been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for right lower extremity peripheral neuropathy, as due to Agent Orange exposure, have not been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1963 to March 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2018 decision, the Board denied service connection for right leg osteoarthritis and service connection for left and right lower extremity peripheral neuropathy. The Veteran appealed the denials to the Court of Appeals for Veterans Claims (Court). In September 2019, the Court granted the parties' Joint Motion for Partial Remand (JMPR/JMR) and remanded the issues back to the Board finding the Board did not adequately explain its reasons and bases for the denials. The Veteran did not appeal the denial of entitlement to service connection for right leg osteoarthritis. In March 2020, the Board again denied service connection for left and right lower extremity peripheral neuropathy. The Veteran appealed the denials to the Court. In February 2021, the Court granted the parties' JMR and remanded the issues back to the Board finding the Board erred by failing to ensure that VA's duty to assist was satisfied. Indeed, the parties agreed that on remand the Board must ensure that the Veteran is afforded with a VA medical examination that is based upon a consideration of the relevant evidence and provides a clear conclusion supported by adequate medical rationale. In June 2021, in light of the February 2021 JMR findings, the Board remanded these issues for further development. Service Connection Service connection for certain chronic diseases, including organic disease of the nervous system, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). A veteran who, during active service, 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 during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. §3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Initially, the Veteran's service records show that he served in the Republic of Vietnam in the inland waterways, and as such, he is presumed to have been exposed to herbicides, including Agent Orange. See 38 U.S.C. § 1116(f), 38 C.F.R. § 3.307(a). VA regulations provide that for service connection to be granted for early onset peripheral neuropathy on a presumptive basis must have manifested to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection. 38 C.F.R. §3.309(e). 38 C.F.R. § 3.309(e) previously listed "acute and subacute peripheral neuropathy" as an enumerated disease and stated that this meant transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. Effective September 6, 2013, VA amended its adjudication regulations concerning presumptive service connection for disabilities associated with exposure to certain herbicide agents. See 78 Fed. Reg. 54,763, Disease Associated with Exposure to Certain Herbicide Agents: Peripheral Neuropathy. The amendments implement a decision by the Secretary to clarify and expand the terminology regarding the presumption of service connection for peripheral neuropathy associated with exposure to certain herbicide agents and to ensure compliance with court orders from the class action litigation of Nehmer v. U.S. Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal. May 17, 1991). In the National Academy of Sciences' (NAS) report Veterans and Agent Orange: Update 2010, NAS concluded that early-onset peripheral neuropathy associated with herbicide exposure is not necessarily a transient condition. The NAS also reaffirmed the conclusion in its prior reports that data did not suggest that exposure to herbicides led to the development of delayed-onset chronic peripheral neuropathy. Therefore, VA amended §§ 3.307(a)(6)(ii) and 3.309(e) by replacing the term "acute and subacute peripheral neuropathy" with the term "early-onset peripheral neuropathy." VA also removed Note 2 to § 3.309(e), which had stated that, for the presumption to apply, the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset. Under the amendments, early-onset peripheral neuropathy will still need to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer needs to be transient. These amendments apply to claims received by VA on or after September 6, 2013 and to claims pending before VA on that date. 1. Entitlement to service connection for left lower extremity peripheral neuropathy, as due to Agent Orange exposure 2. Entitlement to service connection for right lower extremity peripheral neuropathy, as due to Agent Orange exposure The Veteran contends that his peripheral neuropathy of the bilateral lower extremities is due to herbicide exposure. The evidence shows the Veteran was exposed to herbicides while serving on active duty in the Republic of Vietnam's inland waterways. See February 2020 memorandum. The service treatment records (STRs) do not show complaints, treatment or diagnosis of peripheral neuropathy or related symptoms during his period of service or within one year of service discharge. The first documentation post-service includes a March 2011 VA EMG report that documents the Veteran's history of burning feet, numbness, and weakness right more than left leg for the last 2 to 3 years. Peripheral neuropathy of the bilateral lower extremities was shown. An August 2019 VA record documents that the Veteran's peripheral neuropathy is likely related to a past medical history of heavy alcohol consumption, hypothyroidism, and Agent Orange exposure. There was no reasoning included with these findings. During July 2021 VA examination, the examiner indicated that the Veteran's bilateral lower extremity peripheral neuropathy was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, to include Agent Orange exposure. The examiner reasoned that per the VA requirements of presumptive of agent orange exposure with regard to peripheral neuropathy, the condition would have to have had an acute or subacute onset within the first year after exposure. The examiner noted that a review of the claims file reveals there were no complaints from the Veteran of peripheral neuropathy while in service. Initial documentation of peripheral neuropathy was in 2011, confirmed by EMG on March 3, 2011, which noted bilateral sural sensory demyelinating neuropathy. The examiner reviewed the 2019 neurology report and stated that although the 2019 Neurology document notes the Veteran's peripheral neuropathy likely related to a past medical history of Agent Orange exposure, it also states the condition is likely due to past medical history of heavy alcohol consumption and hypothyroidism. The examiner concluded that the Veteran's condition is more likely the result of his heavy alcohol consumption, a condition known as alcoholic neuropathy. Although the evidence shows the Veteran has been exposed to Agent Orange, and he has a current diagnosis of bilateral lower extremity peripheral neuropathy, the Board finds that service connection is not warranted on a presumptive or direct basis in this case. In this regard, the competent evidence fails to demonstrate that the Veteran's current peripheral neuropathy manifested until many years after service and that any current nerve condition is likely caused by other factors besides herbicide exposure. The Veteran has never been diagnosed with acute, subacute, or "early onset" peripheral neuropathy. There is no indication of symptoms in his STRs, nor is there an indication of complaints or diagnosis until March 2011many years after his separation from service. Although the Veteran's exposure to herbicides, including Agent Orange, is presumed, there is no competent evidence that he had peripheral neuropathy within one year of the date of last exposure to herbicides, in order to qualify for the presumption of service connection. See 38 C.F.R. §§ 3.307(a)(6)(ii) and 3.309(e). The preponderance of the competent evidence is against a finding that the Veteran's current peripheral nerve impairment in his lower extremities is directly related to his period of service, to include his exposure to herbicides. Although an August 2019 VA clinician indicated that peripheral neuropathy is likely related to various factors, to include Agent Orange, this finding is inadequate as there is no indication the Veteran's claims file and STRs were reviewed. Further, the clinician did not give any reason for the opinion. Therefore, the August 2019 VA treatment report has minimal probative value. Further, the August 2019 VA clinician's finding is outweighed by the more probative findings to the contrary by the July 2021 VA examiner's opinion. The VA medical professional considered the pertinent evidence of record and found, with adequate rationale, against such a relationship between the Veteran's bilateral lower extremity peripheral neuropathy and an in-service injury, illness, or event, to include Agent Orange exposure. Further, the examiner indicated the Veteran's bilateral lower extremity disability was more than likely due to heavy alcohol consumption, a condition known as alcoholic neuropathy. The Board finds the VA examiner's opinion highly probative, as it is based on accurate facts and supported by an articulated rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Although the Veteran sincerely believes that his current bilateral lower extremity peripheral neuropathy is due to exposure to Agent Orange in service, as a lay person, he has not been shown to have specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The diagnosis and etiology of neurological disorders requires medical testing and expertise to determine. Thus, his lay opinion regarding the etiology of his peripheral neuropathy is not competent medical evidence. In summary, there is no competent evidence of bilateral lower extremity peripheral neuropathy in service or within one year following discharge from service. Moreover, the most probative and persuasive evidence, the July 2021 VA examination opinion, is against a finding that his current peripheral neuropathy of is related to service. Accordingly, service connection for bilateral lower extremity peripheral neuropathy is denied. (Continued on the next page) As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.