Citation Nr: 21068468 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-22 966 DATE: November 10, 2021 ORDER Service connection for diabetes mellitus (DM) is granted. Service connection for peripheral neuropathy (PN), left lower extremity (LLE), is denied. Service connection for PN, right lower extremity (RLE), is denied. Service connection for PN, left upper extremity (LUE), is denied. Service connection for PN, right upper extremity (RUE), is denied. FINDINGS OF FACT 1. The Veteran served on active duty from March 1969 to October 1970, including service in the Republic of Vietnam. 2. DM is presumed to be a result of exposure to herbicides coincident with service in the Republic of Vietnam. 3. Bilateral lower and upper extremity PN was not shown in service, was not shown to a compensable degree within one year of service, and symptoms were not continuous since service; PN is not causally or etiologically related to service, to include as due to herbicide exposure. CONCLUSIONS OF LAW 1. DM is presumed to have been incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.309 (2020). 2. PN, LLE, was not incurred in service and is not presumed to have been incurred in service, to include as due to herbicide exposure. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). 3. PN, RLE, was not incurred in service and is not presumed to have been incurred in service, to include as due to herbicide exposure. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). 4. PN, LUE, was not incurred in service and is not presumed to have been incurred in service, to include as due to herbicide exposure. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). 5. PN, RUE, was not incurred in service and is not presumed to have been incurred in service, to include as due to herbicide exposure. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may also be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 if a veteran served in the Republic of Vietnam between January 1962 and May 1975. 38 C.F.R. § 3.307(a)(6). Notwithstanding the foregoing provisions regarding presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). DM Turning to the medical evidence, an August 2015 VA examiner indicated that the Veteran had impaired fasting glucose, but did not meet the criteria for an official diagnosis of DM. Further, some clinical treatment records, including a June 2016 treatment note, reflect that the Veteran is not diabetic. In support of the claim, an October 2014 VA physician noted that blood test results were consistent with new onset DM. In addition, a May 2015 physician found evidence of a mild increase in hemoglobin related to DM and advised the Veteran to restrict his diet and lose weight. Next, an August 2015 treatment note indicated borderline DM. Further, a December 2020 physician commented that the Veteran's hemoglobin lab results showed that he had problems with sugar control (diabetes). The treatment note reflected an increase in the daily dosage of metformin, a drug used to treat DM. Accordingly, there is sufficient evidence of a current diagnosis of DM and the first element of service connection has been met. As to service in Vietnam, service personnel records, including the DD-214, reflect that the Veteran received a Vietnam Service Medal for active service in the Republic of Vietnam. As such, his exposure to herbicides is conceded. Further, he has been diagnosed with DM, a disability presumed to be related to exposure to herbicides. Therefore, the preponderance of the evidence weighs in favor of the claim and entitlement to service connection for DM is warranted. The appeal is granted to this extent. PN Lower and Upper Extremities Turning to the medical evidence, the Veteran complained of a tingling sensation in his feet and hands in July 2015. The nurse noted a potential diagnosis of neuropathy. In August 2015, a clinical treatment note indicated possible early PN due to complaints of tingling in the fingers and feet, but the Veteran declined a neurological evaluation. Further, a December 2015 VA physician noted continued complaints of peripheral tingling and numbness in the extremities. The physician discussed the possibility of gabapentin for treatment of PN. As such, the medical evidence supports a current diagnosis of PN of all four extremities and the first element of service connection has been met. As to in-service incurrence, the service treatment records (STRs) do not reflect complaints of, treatment for, or a diagnosis related to PN of the lower and upper extremities. Importantly, the October 1970 separation examination indicated a normal clinical evaluation of all extremities and the neurologic system. As such, the medical evidence does not support service connection on a direct basis. As to presumptive service connection, PN is considered as an organic disease of the nervous system; however, at the time of separation in 1970, the clinical evaluation of the Veteran's lower extremities and neurological system was normal. Because the neurologic system and lower extremities were clinically normal at the time of separation, the contemporaneous medical evidence does not support a finding of chronic PN in service. Therefore, the criteria for presumptive service connection under 38 C.F.R. § 3.303 (b) based on "chronic" symptoms in service have not been met. Next, the evidence weighs against a finding of continuous symptoms of PN since discharge, including to a compensable degree within one year of service separation. Specifically, the earliest evidence of PN was in approximately 2015, some 40 years after service separation. The gap of more than 40 years between service and the onset of PN symptoms is one factor, along with other factors in this case such as the absence of in-service neurological injury, disease, or symptoms, that tends to weigh against a finding of continuous symptoms of PN since service. As the weight of the evidence demonstrates no "continuous" symptoms of PN of the lower and upper extremities since active service, including to a compensable degree within the first post-service year, the criteria under 38 C.F.R. § 3.303(b) for presumptive service connection based on "continuous" symptoms of peripheral neuropathy of the bilateral lower and upper extremities is not supported by the medical evidence. With regard to presumptive service connection to herbicide agent (Agent Orange) exposure while serving in Vietnam, the disease subject to presumptive service connection based on herbicide exposure includes PN. However, the regulation specifically identifies the disease to be "early-onset peripheral neuropathy." Early-onset PN is defined to mean that PN manifested to a degree of 10 percent or more within one year after the last date on which a veteran was exposed to an herbicide agent during active service. Here, the Veteran served in Vietnam until October 1970. As PN was not shown until 2015, more than 40 years later, the medical evidence does not support a finding of "early-onset" PN and does not support the appeal based on presumptive exposure to herbicides. Next, under Combee, the Board will consider direct service connection for PN, including due to herbicide exposure. The medical evidence does not support a direct connection between herbicide exposure and Veteran's PN. Specifically, there are no medical opinions of record which establish a link between the Veteran's PN and herbicide exposure. The only evidence of record establishing a nexus are lay statements from the Veteran who is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of the symptoms in his lower and upper extremities due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. As such, the medical records are more probative than the Veteran's lay assertions of a connection with service. In sum, after a careful review of the evidence, the benefit of the doubt rule is not applicable, and the appeals for service connection for PN are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Kokolas, Associate 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.