Citation Nr: 21066775 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 15-18 653 DATE: November 2, 2021 ORDER Entitlement to service connection for bilateral tibial axonal neuropathy of the lower extremities, to include as due to herbicide exposure and as secondary to a service-connected right leg disability, is denied. FINDING OF FACT The Veteran has not been shown to have bilateral tibial axonal neuropathy of the lower extremities that manifested in service or within one year thereafter, that is otherwise causally or etiologically related to his military service, to include exposure to herbicide agents therein, or that was caused or aggravated by his service-connected right leg disability. CONCLUSION OF LAW Bilateral tibial axonal neuropathy of the lower extremities was not incurred in active service, may not be presumed to have been so incurred, and is not proximately due to, the result of, or aggravated by service-connected right leg disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1967 to June 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office. In February 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In a September 2018 decision, the Board denied the issue of entitlement to service connection for peripheral neuropathy of the upper extremities. The remaining claims were remanded for further development. In an August 2020 decision, the Board denied entitlement to service connection for Barrett's disease, status post removal of the gall bladder, and a scar on the abdomen. The Board also remanded the issues of entitlement to service connection for bilateral tibial axonal neuropathy of the lower extremities and for left ear hearing loss for additional development. That development has been completed, and the case has since been returned to the Board for appellate review. In a November 2020 rating decision, the agency of original jurisdiction (AOJ) granted service connection for left ear hearing loss. The grant of service connection for these issues constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Therefore, that issue is no longer on appeal, and no further consideration is necessary. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regard to the issue decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448(1995) (en banc); 38 C.F.R. § 3.310. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 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 section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. Section 3.307(d)(6) also provides that 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. 38 C.F.R. § 3.307(d)(6)(iii). The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). To warrant service connection based on herbicide exposure, peripheral neuropathy must have manifested to a degree of at least 10 percent within a year after the last date on which a veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.307(a)(6)(ii). In addition to the presumptive regulations, a claimant may establish service connection based on exposure to herbicide agents with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes the Veteran is not entitled to service connection for bilateral tibial axonal neuropathy of the lower extremities. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of neuropathy of the lower extremities. In fact, an April 1971 separation examination was normal, including for the lower extremities and neurological system. On the accompanying separation report of medical history, the Veteran also checked the box "yes" for numerous past or present medical problems, including frequent colds, chronic cough, foot trouble, "trick" or locked knee, motion sickness, etc., but he denied having any history of neuritis. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Veteran has not contended otherwise. See February 2018 hearing transcript. For these reasons, the Board finds that the Veteran's bilateral tibial axonal neuropathy of the lower extremities did not manifest in service. The Board notes that the Veteran served in the Republic of Vietnam and is therefore presumed to have been exposed to herbicide agents in service. However, there is no evidence of peripheral neuropathy within one year of date of his last exposure to herbicide agents in Vietnam or within one year of his military service. Indeed, the Veteran testified that his symptoms began in the 1980s, which was many years after his military service. See February 2018 hearing transcript. Therefore, service connection cannot be granted on a presumptive basis. Nevertheless, as noted above, service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (stating that the inapplicability of presumptive service connection "does not foreclose proof of direct service connection"). In September 2018, the Board remanded the claim for service connection for bilateral tibial axonal neuropathy of the lower extremities for an additional VA examination and medical opinion. The examiner was asked to address whether the Veteran's neuropathy of the lower extremities is related to his herbicide exposure in service, regardless of whether the regulatory presumption applied. In addition, the examiner was requested to address whether neuropathy of the lower extremities was caused or aggravated by his service-connected right lower leg contusion with residual mild soft tissue swelling and scar. In this regard, it was noted that an August 2013 VA examiner stated that tibial neuropathy results from nerve compression in the region of the ankles due to trauma to the bones about the ankle, rheumatoid arthritis, tumors, or other causes of inflammation. Following the remand, a September 2019 VA examiner opined that the Veteran's pain and numbness in his legs is most likely radicular in nature and secondary to his lumbar spine surgery and degenerative disc disease. However, the examiner did not specifically address whether his neuropathy of the bilateral lower extremities could be caused or aggravated by his service-connected right leg disability. Nor did the examiner consider whether the disorder could be related to herbicide exposure during service. Instead, he only noted that there was no evidence of early-onset peripheral neuropathy within one year of date of last exposure. For these reasons, in August 2020, the Board found that an additional medical opinion was needed. An additional VA medical opinion was obtained in October 2020. The VA examiner opined that the Veteran's neuropathy of the lower extremities is less likely than not related to his military service, including his presumed herbicide exposure therein. The examiner noted that he is service-connected for a right lower leg disability following an in-service injury in 1970. However, she also observed that the Veteran's service treatment records and post-service medical records within one year after his separation from service are negative for any peripheral neuropathy of the lower extremities. Instead, the examiner found that his current peripheral neuropathy of the lower extremities is due to his nonservice-connected low back condition. She explained that the post-service medical records document that the Veteran was treated for a chronic low back disorder in the late 1990s, requiring a laminectomy and decompression with rod placement at L3-L5 in 2001. Since that time, he has been diagnosed with lumbar disc degeneration, lumbar radiculopathy, and lumbar stenosis, and he has complained of severe low back pain with radicular symptoms. He also had a spinal cord stimulator placed in 2004 and removed in 2010 due to lack of consistent benefit. Since that time, the Veteran has had extensive pain management, including lumbar steroid injections and chronic opioid therapy up to the present time. More recently, the condition has worsened, and surgery has been again contemplated on the upper spine levels. The examiner stated that there are innumerable causes of peripheral neuropathy, including the Veteran's chronic, ongoing lumbar spine pathology. In addition, the October 2020 VA examiner noted that a peripheral nerves VA examination was performed in July 2013. The examiner referenced an EMG/NCS study showing right tibial nerve mild peripheral axon loss neuropathy. The examiner explained that the tibial nerve branches from the sciatic nerve, originating in the lumbar spine. There was no evidence of a polyneuropathy, and there was only objective clinical evidence of a right tibial nerve involvement, corresponding to the subjective findings on physical examination associated with the lumbar pathology. Regarding the Veteran's herbicide exposure during Vietnam service, the October 2020 VA examiner stated that there is no evidence of manifestations of peripheral neuropathy prior to the development of radicular back pain in the late 1990s, which was years after exposure, and clearly associated with the Veteran's spine pathology. Furthermore, the examiner reviewed the evidence-based medical literature and found no evidence of a causative association of exposure to Agent Orange and development of a neuropathy. Therefore, the examiner opined that the Veteran's peripheral neuropathy of the bilateral lower extremities was less likely than not caused by herbicide exposure in service. Regarding secondary service connection, the October 2020 VA examiner opined that the Veteran's neuropathy of the lower extremities is less likely than not caused or aggravated by his service-connected right leg disability. The examiner noted that he is service-connected for a right lower leg disability following the 1970 injury in service with residual mild soft tissue swelling and scar. She noted that the Veteran developed bilateral sciatic radiculopathy in both lower extremities in the late 1990s. He was diagnosed with right tibial nerve axonal loss on a 2013 EMG/NCS study. The tibial nerve branches from the sciatic nerve. During the September 2019 peripheral nerve examination, the Veteran was found to have severe pain and numbness of both lower extremities, consistent with a sciatic nerve involvement and corresponding to the extensive lumbar spine pathology present. The examiner stated that there is no connection between the local right shin/lower leg contusion and his lumbar radiculopathy. There was no diagnosis of a nerve pathology in service at the time of the right leg injury in 1970, during the separation examination, or at any time over the years until EMG testing in 2013. Although the Veteran had an injury to his right leg in 1970, there was no nerve involvement. The tibial nerve runs down the posterior lower leg. The Veteran had lumbar radiculopathy in the 1990s bilaterally, involving the sciatic nerve that continues into the tibial nerve. The examiner remarked that these two conditions have different pathogeneses and do not involve the same systems. Therefore, the service-connected right leg disability has not caused or aggravated the lumbar radiculopathy/peripheral neuropathy of the bilateral lower extremities. The Board finds that the October 2020 VA examiner's opinion is highly probative, as it was based on a review of the claims file and medical literature, considered the specific facts of the case, and was supported by rationale. Moreover, there is no medical opinion otherwise relating peripheral neuropathy of the lower extremities to the Veteran's military service, including his herbicide exposure therein, or to his service-connected right leg disability. The Board has considered the Veteran's statements asserting that his peripheral neuropathy is related to his right leg injury in service. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of his peripheral neuropathy of the lower extremities, falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset of the disorder, internal medical process involved, and presence of a nonservice-connected back disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming that the Veteran is competent to opine on this medical matter, the Board finds that the specific, reasoned opinion of the October 2020 examiner is of greater probative weight than the Veteran's more general lay assertions. The examiner reviewed and considered the evidence of record, including the Veteran's statements, and provided a medical opinion with supporting rationale that relied on her own medical training, knowledge, and expertise as well as review of medical literature. Based on the foregoing, the Board finds the most probative evidence shows tibial axonal neuropathy of the bilateral lower extremities did not manifest in service, is not otherwise related to the Veteran's military service, including herbicide agent exposure, and is not secondary to a service-connected disability. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes the Veteran is not entitled to service connection for tibial axonal neuropathy of the bilateral lower extremities. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.