Citation Nr: 21067982
Decision Date: 11/08/21	Archive Date: 11/08/21

DOCKET NO. 13-14 749
DATE: November 8, 2021

ORDER

Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to herbicide agent exposure, is denied.

FINDING OF FACT

The Veteran's peripheral neuropathy of the bilateral lower extremities was not shown in service or for many years thereafter, and is not otherwise etiologically related to service, to include as due to herbicide exposure. 

CONCLUSION OF LAW

The criteria for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the United States Army, on active duty from September 1964 to August 1966. He was awarded the Combat Infantryman Badge and the Vietnam Service Medal, among others. 

This matter comes before the Board of Veterans' Appeals (Board) from a June 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the June 2011 rating decision, the RO denied reopening the Veteran's claim, however, in November 2017 the Board reopened the claim and remanded the issue for further development. 

In January 2021, the Board remanded the issue again after finding the January 2020 VA examination to be inadequate and instructed the RO to provide the Veteran with a new examination. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran underwent a VA examination in July 2021. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. 

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Furthermore, service connection is warranted for a veteran who has been exposed to a toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)) for diseases such as chloracne or other acneform diseases consistent with ischemic heart disease, Type 2 diabetes, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson's disease, chloracne and respiratory cancers, and B-cell leukemias. 38 C.F.R. § 3.309(e). Additionally, early-onset peripheral neuropathy must have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military service. 38 C.F.R. § 3.307 (a)(6)(ii).

To determine whether a Veteran was exposed to herbicide agents, VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975 shall be presumed to have been exposed during such service to certain toxic herbicide agents, with the most common being "Agent Orange," unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Therefore, if a Veteran served in-country in Vietnam, they are entitled to a presumption of herbicide exposure, and need not prove actual exposure to herbicides. The Veteran served in Vietnam during this time and is presumed to have been exposed to herbicide agents.

Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to herbicide agent exposure

The Veteran seeks service connection for peripheral neuropathy of the bilateral lower extremities. Specifically, he asserts entitlement to presumptive service connection for peripheral neuropathy due to Agent Orange exposure during service in Vietnam. 

After a review of the evidence, the Board concludes that while the Veteran has a current diagnosis of peripheral neuropathy of the lower extremities, the preponderance of the evidence weighs against finding that this disorder began during service or is otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303(a), 3.304, 3.309; Holton v. Shinseki, 557 F.3d 1363. 1366 (Fed. Cir. 2009).

As an initial matter, the Board finds that the Veteran is not entitled to service connection for peripheral neuropathy on a presumptive basis due to herbicide agent exposure per 38 C.F.R. § 3.307(a)(6)(ii). Although the Veteran is presumed to have been exposed to herbicide agents, as is discussed in greater detail below, the evidence of record does not contain a diagnosis for peripheral neuropathy during or within one year of service. Id.

Next, although the Veteran is not entitled to presumptive service connection for peripheral neuropathy due to toxic herbicide exposure per 38 C.F.R. § 3.307, he is not precluded from demonstrating that his peripheral neuropathy was proximately due to, the result of, or aggravated by his Agent Orange exposure or other in-service illness, event, or injury. See Combee v. Brown, 43 F3.d 1039, 1041-42 (Fed. Cir. 1994). However, the competent evidence fails to establish a relationship between active duty and the Veteran's current peripheral neuropathy.

Specifically, the Veteran's service treatment records are silent for symptoms, treatment, or a diagnosis of neuropathy. The Veteran suffered from left thigh pain in June 1965 after a softball injury, and from tender callouses of his right foot from wearing boots too large for him in April 1966. However, these issues seem to have resolved by the time of his discharge examination in July 1966, as he denied any foot or leg issues. Moreover, the separation examination does not indicate any evidence of symptoms or a diagnosis related to peripheral neuropathy. 

Indeed, the record does not contain evidence of symptoms or a diagnosis of neuropathy until October 2009, which is approximately 43 years after separating from service. As such, continuity of symptoms since service is not shown on a clinical basis. 

The Board has considered the Veteran's statements that his neuropathy symptoms have been continuous since service. However, the Board is unable to grant service purely on his statements alone and the record weighs against his testimony. As noted, the Veteran was not diagnosed with neuropathy for more than four decades after service. Additionally, in November 2009, the Veteran reported that his lower extremities disability were related to a low back condition that began in 2007, which is not consistent with his statements that he has had symptoms since service. Therefore, continuity of symptoms is not shown based on either the clinical evidence or the Veteran's statements.

Next, service connection may be granted if the evidence otherwise reflects that the Veteran's peripheral neuropathy is related to service. However, after a review of all available evidence, service connection is also not warranted on this basis.

While the Veteran was afforded a VA examination in January 2020, the Board has found it to be inadequate. Specifically, the examiner did not review or discuss instances of thigh and foot pain in-service, or the Veteran's private treatment note from February 2011 relating his peripheral neuropathy to herbicide exposure in Vietnam. Thus, the Board finds the January 2020 VA examination to be of no probative value. 

Next, the Veteran underwent a VA examination in July 2021. Here, the examiner concluded there was no objective evidence of lumbar radiculopathy, and that the correct diagnosis is mixed motor and sensory lower extremities peripheral neuropathy. However, the examiner opined against service-connection for the Veteran's peripheral neuropathy. In support, the examiner wrote that chronic alcohol abuse is a known cause of mixed motor and sensory peripheral neuropathy. Moreover, the examiner emphasized that in March 2011, the Veteran's primary care physician stated the cause of his peripheral neuropathy as chronic alcohol use. Lastly, the examiner noted there is no objective evidence that the Veteran received treatment or was diagnosed within five years of active service. 

Because the examiner reviewed the evidence of record, to include his service treatment notes and February 2011 private opinion, examined the Veteran, considered his contentions, and provided a well-reasoned rationale for their opinion that is consistent with the lack of treatment in the medical records for neuropathy for more than 40 years after service, the Board finds their opinion highly probative. 

The Board has considered the Veteran's February 2011 private opinion that relates his peripheral neuropathy to herbicide exposure in Vietnam. However, the rationale provided for this opinion is conclusory and general in nature, stating that peripheral neuropathy is a "known" conditioned "related to Agent Orange to which he was exposed to while at Vietnam." This opinion relies on the presumption that exposure to herbicides causes peripheral neuropathy. While such a presumption exists if the Veteran's symptoms manifested to a compensable degree within one-year of service, the record indicates the first symptoms onset more than 40 years after service. Therefore, the Board finds the private opinion to be of no probative value in determining the etiology of his peripheral neuropathy. 

As a result, the evidence of record does not support service connection for peripheral neuropathy of the bilateral lower extremities. 

In arriving at this conclusion, the Board has considered, in addition to the entire evidence of record, the statements made by the Veteran relating the disorders on appeal to his active service. The Veteran is competent to report symptoms of peripheral neuropathy as are observed through his senses. However, while lay statements may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

The Board concludes that the weight of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal is denied.  

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.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. McDonald