Citation Nr: 21074150 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-48 036 DATE: December 14, 2021 ORDER Entitlement to service connection for peripheral neuropathy is denied. FINDING OF FACT Peripheral neuropathy did not manifest in service or within one year after service and is not otherwise related to service, to include due to herbicide agent exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for peripheral neuropathy have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1963 to February 1971 and in the United States Air Force from August 1971 to July 1977 and from April 1984 to August 1989. This matter was previously before the Board, which issued a decision in April 2021 remanding the claim to obtain VA treatment records from March 2016 to present and to obtain a VA examination for peripheral neuropathy. Updated VA treatment records were obtained and added to the claims file. Additionally, the Veteran underwent a VA examination for peripheral neuropathy in August 2021. Thus, the Board is satisfied there was substantial compliance with the March 2021 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The RO issued a supplemental statement of the case in August 2021. The case now returns to the Board for further proceedings. Entitlement to service connection for peripheral neuropathy The Veteran contended he developed peripheral neuropathy from exposure to Agent Orange while serving in Vietnam. Additionally, the Veteran he stated that he experienced problems with feet during basic training and during active duty. The Veteran reported to the August 2021 VA examiner that his peripheral neuropathy started 16 years prior with weird feelings in both feet and occasional hand cramps. He told the examiner it feels like he is walking on a towel and he has some pain. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran 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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, including organic diseases of the nervous system, such as peripheral neuropathy, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). If a veteran was exposed to an "herbicide agent," such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases, including early-onset peripheral neuropathy, which manifests to a compensable degree within one year after the last date on which the veteran was exposed to an herbicide agent, will be service connected even if there is no in-service record of the disease. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e). Notwithstanding the foregoing presumptions, a veteran is not precluded from establishing service connection due to exposure to herbicides with proof of direct causation. Combee v. Brown, 38 F.3d 1039, 1042 (Fed. Cir. 1994). 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 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, he/she is entitled to a presumption of herbicide exposure, and need not prove actual exposure to herbicides. The Board notes that the Veteran's military personnel record shows that he served in Vietnam from March 1968 to March 1969; as such, he is presumed to have been exposed to herbicide agents. However, the Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran's bilateral peripheral neuropathy of the lower extremities had its onset during active service, within one year after March 1969 (the last date on which the Veteran is presumed to have exposed to an herbicide agent during active service in Vietnam) or within one year after service discharge, and is not otherwise related to his period of active service. The reasons follow. As to evidence of a current disability, there is competent evidence that the Veteran has been diagnosed with peripheral neuropathy. For example, a June 2012 electromyographic (EMG) examination shows an impression of peripheral polyneuropathy. Thus, the facts establish that the first element of a service-connection claim is met. As to evidence of a disease or injury in service, service treatment records (STRs) show some complaints of arm and foot problems in service. At entrance to the Army in June 1963, the Veteran reported no painful or "trick" shoulder or elbow, no "trick" or locked knee, no foot trouble, no neuritis, and no paralysis in a report of medical history. A report of medical examination at that time the Veteran showed normal presentations including normal upper extremities, feet, lower extremities, and neurological findings. A July 1963 STR documented the Veteran injured his left foot and showed tenderness over the medial arch. He was diagnosed with a left arch strain at that time, a stress fracture in August 1963, and a persistent foot strain in September 1963. An October 1963 STR noted the Veteran showed left foot pain since he tripped and fell during basic training. He was diagnosed with a mild foot strain in December 1963. In A July 1964 report of medical history, the Veteran reported foot trouble, but also stated he had no painful or "trick" shoulder or elbow, no neuritis, and no paralysis. A report of medical examination at that time indicated normal findings including normal upper extremities, feet, lower extremities, and neurological presentations. A March 1965 STR documented the Veteran bruised his left foot after striking it on cement. In a May 1967 report of medical history, the Veteran stated he had foot trouble in 1964, but he reported no painful or "trick" shoulder or elbow, "trick" or locked knee, neuritis, or paralysis. A May 1967 report of medical examination again showed normal findings including normal upper extremities, feet, lower extremities, and neurological presentations. The examiner further noted the Veteran had minor trouble with his left foot, but he had not had any trouble for the previous six months and everything seemed fine at the time of the exam. Indeed, in February 1968 and October 1970 reports of medical history, the Veteran stated he had no foot trouble as well as no painful or "trick" shoulder or elbow, no "trick" or locked knee, no neuritis, and no paralysis. The Veteran also showed normal presentations in reports of medical examination from February 1968 and October 1970 including normal upper extremities, feet, lower extremities, and neurological findings. When the Veteran began at the Air Force in August 1971, he reported foot trouble from water-soaked boots and otherwise normal findings including no painful or "trick" shoulder or elbow, "trick" or locked knee, neuritis, or paralysis. In a report of medical examination at that time, the Veteran showed normal upper extremities, feet, lower extremities, and neurological findings. A September 1976 STR noted the Veteran had an inflamed toe on his right foot, but the Veteran again showed normal presentations in a September 1977 report of medical examination including normal feet, upper extremities, lower extremities, and neurological findings. In between his second and third periods of active service, the Veteran was noted to have no foot trouble in February 1978. In May 1979, a treatment note stated the Veteran had numbness in both arms and left shoulder pain for the previous three months. He was referred to neurology for conduction studies in June 1979, but such studies are not included in the record. Additionally, the next notable treatment note documented that the Veteran was previously diagnosed with thoracic outlet syndrome and he had back pain, but he had no numbness in his arms or legs. A March 1980 neck x-ray showed normal findings. In January 1981, the Veteran was noted to have recurrent right-sided paravertebral back pain mostly in the thoracic region since 1976 that occurred mostly after heavy physical activity or after lifting heavy objects, but he had no radiculopathy symptoms, a distal exam was normal, and the Veteran was only diagnosed with recurrent back pain. An April 1981 treatment record showed occasional shooting pain down the left leg and knee associated with back pain, but the Veteran also had normal deep tendon reflexes, normal strength, pinprick sensation intact, negative bilateral straight leg raises, and x-rays were normal. The Veteran complained of right arm pain in January 1983. While these records show some abnormal complaints by the Veteran, they are outweighed by the concurrent normal physical examination findings. Additionally, there is no indication that any symptoms the Veteran may have suffered during this in-between period extended into his third stint in service, as the reports of medical history and medical examination during his third period of service showed no neurological complaints and normal neurological examination findings as detailed above. When the Veteran rejoined the Air Force, he complained of toe and right-sided knee pain caused by marching in June 1985. A December 1986 report of medical examination showed normal presentations including normal upper extremities, feet, lower extremities, and neurological findings. A July 1987 STR documented a sore on the top of the Veteran's right foot. In a September 1987 report of medical history, the Veteran reported no painful or "trick" shoulder or elbow, no "trick" or locked knee, no foot trouble, no neuritis, and no paralysis. In an October 1987 STR, the Veteran reported right arm problems after spending three hours hammering. He stated he had pain, numbness, and some paresthesia on the right forearm with no swelling. The Veteran was diagnosed with overuse syndrome. He was noted to have tennis elbow in December 1987. In June 1988, the Veteran was noted to have problems with his left shoulder and knee. He complained of intermittent left shoulder pain with overhead rotation and left knee pain with prolonged standing, but left knee and shoulder exams were normal. The Veteran also reported right elbow pain with hammering motion and showed slight elbow tenderness and pain against resistance. He was diagnosed with possible mild bursitis and degenerative joint disease. As noted above, before the Veteran retired from the Air Force in April 1989, he reported normal findings in a report of medical history including no painful or "trick" shoulder or elbow, "trick" or locked knee, foot trouble, neuritis, or paralysis. Also, the report of medical examination at that time showed normal findings of the upper extremities, feet, and neurological presentations. The examiner noted an abnormal lower extremity finding, but it was not related to peripheral neuropathy as it was a scar on the inner thigh. Given the above, the Board finds as fact that the Veteran was not diagnosed with neuropathy in service. Notably, his April 1989 report of medical examination at discharge from service documents normal findings of his feet, arms, and neurological system, and within a concurrent report of medical history at separation from service, he a history of foot, arm, or other neurological problems. Moreover, the Veteran showed consistently normal neurological findings throughout his three stints in service. Given the above, the in-service disease or injury element is met to the extent to that the Veteran had some abnormal foot and upper extremity findings in service. Additionally, the Veteran presumed exposure to herbicide agents in Vietnam are also sufficient to meet the requirement of an in-service injury or disease. Regarding presumptive service connection, the Board finds that presumptive service connection based on either herbicide exposure or a chronic disease is not warranted. For example, the record does not contain competent and credible evidence within one year of his service in Vietnam or within one year following the Veteran's service discharge to substantiate the Veteran's alleged symptomology of neuropathy symptoms soon after service discharge. Notably, during the August 2021 VA examination, the Veteran did not allege his symptoms began within one year of service discharge from service. Rather, the Veteran reported to the August 2021 VA examiner that peripheral neuropathy had begun 16 years prior to the examination, which would put the onset around 2005. In a June 2012 VA treatment record, the Veteran reported his peripheral neuropathy began in three years earlier, which would mean an onset of 2009. Additionally, the June 2012 VA treatment record also stated that records indicated the onset of peripheral neuropathy came in 2007. Regardless, 2005 to 2009 does not fall within the within one year of the Veteran's service in Vietnam or his last service discharge. The Veteran's reporting of the onset of these symptoms as occurring in the years from approximately 2005 to 2009 is highly probative, as he made these statements while seeking medical treatment, which statements tend to be exceptionally trustworthy. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Only after being denied service connection for peripheral neuropathy because early-onset peripheral neuropathy was not shown within one year of the Veteran's service in Vietnam did the Veteran begin report that his peripheral neuropathy was related to problems with his feet during active duty and basic training, as documented in a September 2017 Form 9. The Board finds the subsequent allegations by the Veteran that the Veteran had symptoms during service are outweighed by the Veteran's prior report of the onset of the symptoms to a medical professional in June 2012 as having an onset approximately three years prior to be more probative as to the onset of the Veteran's symptoms, as the June 2012 statement to a medical professional was exceptionally trustworthy as opposed to his later statements made during the pendency of his appeal for VA disability compensation. Thus, the Board concludes that the preponderance of the evidence is against finding that the Veteran had early-onset peripheral neuropathy, as contemplated by the regulation for presumptive service connection for such disability related to herbicide exposure, since it was not manifested within one year of his last herbicide exposure. For the same reasons, the Board finds the preponderance of the evidence is also against peripheral neuropathy manifesting within one year following service discharge, as contemplated by the regulation for presumptive service connection for a chronic disease. Thus, service connection on presumptive bases for herbicide exposure and a chronic disease is denied. The Board also finds that the preponderance of the evidence is otherwise against a nexus between peripheral neuropathy and service. As stated above, when the Veteran was seen in June 2012, he reported an onset of symptoms as beginning approximately three years prior, which is almost 20 years following service discharge. The first medical record showing relevant physical findings after service is a March 2001 VA examination for a left thigh scar, which showed normal gait, no tender or swollen areas, no atrophy, normal muscle strength, no restriction of motion at hips or knees, deep tenson reflexes were equal and normal, normal pedal pulses, and normal function of the nerves involving both motor function and sensory function. When first treated by VA in August 2006, the Veteran was found to have normal neurological findings. At this time, there were no reports of tingling and burning in the Veteran's lower extremities dating back 17 years. These facts demonstrate that the Veteran's peripheral neuropathy in the lower extremities manifested decades after service, which does not lend to a finding that peripheral neuropathy had its onset in service or is otherwise related to service. In August 2021, a VA examiner reviewed the Veteran's claims file, including the service treatment records, and stated it was less likely than not that the Veteran has early onset peripheral neuropathy during the Veteran's service or within one year of his last date of herbicide agent exposure. The VA examiner also found it is less likely than not that peripheral neuropathy began during service or within one year after discharge or was noted during service with continuity. These medical opinions are supported by the credible evidence of record. The VA examiner pointed to the June 2012 VA treatment record noting onset of peripheral neuropathy was sometime between 2007 and 2009, which is well beyond one year of service discharge. The VA examiner also noted that he found no mention of any complaints regarding the Veteran's feet that would indicate a neurological component in the chronological medical records. This is consistent with the service treatment records as detailed above, which showed the Veteran had various complaints and treatment in service for foot issues. However, the Veteran also consistently reported normal neurological findings in reports of medical history, and showed normal neurological presentations in reports of medical examination throughout the service treatment records. Thus, the VA examiner reviewed the entire record before giving opinions that are supported by a rationale that is consistent with the medical record, and the Board finds these opinions highly probative. The Board considered the Veteran's contention that he developed peripheral neuropathy from exposure to Agent Orange while serving in Vietnam. As noted previously, the military personnel records establish that the Veteran served in Vietnam, and, therefore, is presumed to have had exposure to herbicides. However, as detailed above, the preponderance of the evidence is against finding the Veteran's peripheral neuropathy had its onset within one year of service in Vietnam. Additionally, the VA examiner found it was less likely than not that the Veteran's peripheral neuropathy began during service or within one year after discharge or was noted during service with continuity. As highlighted above, these opinions are highly probative as the August 2021 VA examiner reviewed the entire claims file, he issued detailed rationales to support these opinions, and the opinions are consistent with the medical record. Therefore, more weight is afforded to the opinions of the VA examiner then the Veteran's unsupported contention that he developed neuropathy from exposure to Agent Orange. The Board considered the Veteran's contention that he experienced problems with feet during basic training and during active duty. The STRs show the Veteran was diagnosed with a left foot arch strain in July 1963, a stress fracture in August 1963, and a persistent foot strain in September 1963. An October 1963 STR noted the Veteran showed left foot pain since he tripped and fell during basic training. He was diagnosed with a mild foot strain in December 1963. Further, the STRs noted other foot issues in service. As detailed above, a March 1965 STR documented the Veteran bruised his left foot after striking it on cement. However, a May 1967 report of medical examination showed normal findings including normal upper extremities, feet, lower extremities, and neurological presentations. The examiner further noted the Veteran had minor trouble with his left foot, but he had not had any trouble for the previous six months and everything seemed fine at the time of the exam. Indeed, in February 1968 and October 1970 reports of medical history, the Veteran stated he had no foot trouble, no neuritis, and no paralysis. The Veteran also showed normal presentations in reports of medical examination from February 1968 and October 1970 including normal feet, lower extremities, and neurological findings. The Veteran then reported foot trouble from water-soaked boots in August 1971 when he began at the Air Force, but a report of medical examination at that time showed normal feet, lower extremities, and neurological findings. A September 1976 STR noted the Veteran had an inflamed toe on his right foot, but the Veteran again showed normal presentations in a September 1977 report of medical examination including normal feet, lower extremities, and neurological findings. During the Veteran's third period of service, he complained of toe and right-sided knee pain caused by marching in June 1985. A December 1986 report of medical examination showed normal presentations including normal, feet, lower extremities, and neurological findings. A July 1987 STR documented a sore on the top of the Veteran's right foot. In a September 1987 report of medical history, the Veteran reported no foot trouble, no neuritis, and no paralysis. Finally, before the Veteran retired from the Air Force in April 1989, he reported normal findings including no foot trouble, neuritis, or paralysis. Also, the report of medical examination at that time showed normal findings of the feet and neurological presentations. Thus, while the STRs support the Veteran's contentions that he experienced problems with feet during basic training and during active duty, he reported normal foot and neurological findings at separation from service, which was consistent with what was found on examination at that time. Ultimately, these findings do not establish a nexus to service. Again, more weight is afforded to the opinions of the August 2021 VA examiner, who noted that he found no mention of any complaints regarding the Veteran's feet that would indicate a neurological component in the chronological medical records, as this finding is consistent with the STRs. Additionally, the VA examiner highlighted the June 2012 VA treatment record noting onset of peripheral neuropathy was sometime between 2007 and 2009, which weighs against a finding that peripheral neuropathy began in service. For all the reasons laid out above, the Board finds the preponderance of the evidence is against the claim for service connection for peripheral neuropathy. As the weight of the evidence is against the claim, there is no doubt to be resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The claim for service connection is denied. D. C. JOHNSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Patton 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.