Citation Nr: 21066643 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-54 774 DATE: November 1, 2021 ORDER Entitlement to service connection for peripheral neuropathy, left lower extremity, to include as due to herbicide exposure, is granted. Entitlement to service connection for peripheral neuropathy, right lower extremity, to include as due to herbicide exposure, is granted. Entitlement to service connection for peripheral neuropathy, left upper extremity, to include as due to herbicide exposure, is denied. Entitlement to service connection for peripheral neuropathy, right upper extremity, to include as due to herbicide exposure, is denied. FINDINGS OF FACT 1. The Veteran's bilateral lower extremity peripheral neuropathy was caused by active duty service. 2. The preponderance of the evidence of record is against finding that the Veteran has had right or left upper extremity neuropathy at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral neuropathy, left lower extremity, to include as due to herbicide exposure have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for peripheral neuropathy, right lower extremity, to include as due to herbicide exposure have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for peripheral neuropathy, left upper extremity, to include as due to herbicide exposure have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for peripheral neuropathy, right upper extremity, to include as due to herbicide exposure have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to June 1971. In July 2019, the Veteran testified at a video conference hearing before the Board of Veterans' Appeals (Board). A transcript of the hearing is available in the record. On September 15, 2021, the Board notified the Veteran that the Veterans Law Judge who conducted the July 2019 hearing was no longer employed by the Board. The Veteran was given 30 days from the date of the letter to request a new hearing. The 30 days has run, and the Veteran has not requested a new hearing. Therefore, the Board will proceed with the adjudication of the claims on appeal. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A veteran who, during active military, naval, or air 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. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service-connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. These regulations stipulate that early-onset peripheral neuropathy may be presumed due to an association with exposure to herbicide agents. 38 C.F.R. §§ 3.307, 3.309(e). Early-onset peripheral neuropathy must 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. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). There is no herbicide-related presumption of service connection for "delayed-onset chronic" peripheral neuropathy. 1. Entitlement to service connection for peripheral neuropathy of the lower extremities The Veteran served in the Republic of Vietnam, and herbicide exposure is conceded. June 1969 Airman Performance Report. The Veteran's service treatment records, to include his entrance and separation examinations were silent for complaints of or treatment for any neurological disorders of his lower extremities. In a November 2014 statement, the Veteran reported that he experienced numbness in his feet once he returned from Vietnam. November 2015 VA treatment notes show the Veteran was diagnosed with moderately severe peripheral neuropathy. In December 2015 VA treatment records, the examiner noted the Veteran had back pain and associated radiculopathy for 5 years, and he had idiopathic peripheral neuropathy. The Veteran was provided with a VA examination in September 2020. The examiner diagnosed the Veteran with peripheral neuropathy of the lower extremities. The Veteran provided a positive nexus opinion. He determined the Veteran developed early onset neuropathy during active service and the condition grew progressively worse over the years. There was no other etiology identified in the Veteran's medical history to explain the neuropathy besides his service-related exposure. In September 2020, the same VA examiner provided an addendum opinion, which contradicted the prior nexus opinion. The examiner determined the lower extremity peripheral neuropathy was not related to active service, citing a 2015 VA treatment note which showed the peripheral neuropathy had its onset 5 years prior to 2015. While the addendum opinion concluded that the Veteran's peripheral neuropathy only manifested in 2010, the Board finds this opinion inadequate. The 2015 VA treatment note, upon which the examiner hinged their opinion, clearly noted that the Veteran's low back radiculopathy had developed 5 years prior. The same record also clearly noted a separate diagnosis of idiopathic peripheral neuropathy. Neuropathy and radiculopathy are different disorders, though both are neurologically based. Compare Dorland's Illustrated Medical Dictionary at 1571 (32d ed. 2012) ("Generally speaking, radiculopathy is a disease of the nerve roots, such as from inflammation or impingement by a tumor or bony spur.") (Neuropathy is "[a] functional disturbance or pathological change in the peripheral nervous system, sometimes limited to non-inflammatory lesions as opposed to those of neuritis. Known etiologies include complications of other diseases, such as diabetes or porphyria, or of toxicity states.") Id. at 1268. Idiopathic also means "of unknown cause or spontaneous origin." Id. at 912. Thus, the record referenced by the addendum opinion actually showed the Veteran had peripheral neuropathy of unknown cause or spontaneous origin. This is clearly different than radiculopathy related to a known etiology of a back condition. The Veteran's records show multiple treatments for back disorders with associated radiculopathy, which are separate and apart from the Veteran's diagnosis for peripheral neuropathy. October 2015 VA treatment notes; September 2019 VA treatment notes. In October 2015, the Veteran reported that the numbness in his feet radiated to his knees, and did not come from his back. The September 2020 addendum opinion was based upon inaccurate facts as to the onset of the peripheral neuropathy. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In contrast, the initial positive nexus opinion was accompanied by a complete rationale supported by the record. Therefore, the Board finds the initial VA medical opinion more probative than the subsequent VA addendum opinion. Accordingly, the criteria for service connection have been met, and entitlement to service connection for left and right lower extremity peripheral neuropathy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for peripheral neuropathy of the upper extremities The Veteran contends that he has peripheral neuropathy of the upper extremities due to his exposure to herbicides during his service in the Republic of Vietnam. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. In November 2015 VA treatment notes, the Veteran did not have neuropathy symptoms in his hands. In April 2018, the Veteran's representative asserted that the Veteran had a diagnosis for upper extremity peripheral neuropathy. The Veteran was provided with a VA peripheral nerve examination in September 2020. The Veteran was not diagnosed with any nerve condition of the right or left upper extremities. The Veteran reported that his upper extremities symptoms began in 1978, and have worsened over time. There were no symptoms of pain, paresthesias, or numbness on examination of the upper extremities. Muscle strength testing was normal, the reflex exam was normal, and all the nerves and radicular groups of the upper extremities were normal. The Board concludes that the Veteran does not have a current diagnosis of right or left upper extremity neuropathy, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Veteran believes he has a current diagnosis of peripheral neuropathy in the upper extremities, he does not have the training or credentials to provide a competent diagnosis in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, given the findings above, there is insufficient lay or medical evidence to suggest that any upper extremity symptoms reach the level of functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In the absence of proof of a present disability, to include functional impairment of earning capacity as outlined in Saunders, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Consequently, the Board gives more probative weight to the competent medical evidence failing to show confirmed diagnoses of right or left upper extremity neuropathy, and the claims must be denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. N. Quarles, 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.