Citation Nr: 21075377 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-02 283 DATE: December 20, 2021 ORDER Service connection for peripheral neuropathy of the bilateral hands, to include as due to Agent Orange exposure, is denied. FINDINGS OF FACT 1. The probative evidence shows that the Veteran did not have verified service in Vietnam during the Vietnam era, and was not exposed to an herbicide agent, including Agent Orange, during his service. 2. The probative evidence shows that the Veteran did not have verified service stationed at a Royal Thai Air Force Base as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter during the Vietnam era, and was not exposed to an herbicide agent, including Agent Orange, during his service. 3. The probative evidence shows that the Veteran's peripheral neuropathy of the bilateral hands is not shown to have had its onset in service, within one year of separation from service, or is otherwise related to his service. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy of the bilateral hands, to include as due to Agent Orange exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran testified before the undersigned Veterans Law Judge in a May 2018 Travel Board hearing. A transcript of the hearing has been associated with the file. The Board remanded the matter twice, in April 2020 and in March 2021, for compliance with the terms of the Joint Motion for Partial Remand (JMPR). The Board finds substantial compliance with the remand directives. As such, the matter will be adjudicated. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, service connection may be presumed for certain conditions, including early-onset peripheral neuropathy even if there is no record of such disease during service. The governing law 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 U.S.C. § 1116(f). Exposure to herbicide agents may also be presumed in Thailand if the Veteran was stationed at The Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang, and the Veteran's Military Occupational Specialty (MOS) involved service as a security policeman, security patrol dog handler, member of a security police squadron, or other service on or near the base perimeter. Additionally, VA recently amended its regulation governing individuals presumed to have been exposed to certain herbicide agents by expanding it to include individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. See 38 C.F.R. § 3.307(a)(6)(v). VA has published a list of military units who had regular and repeated exposure to contaminated Operation Ranch Hand (ORH) C-123s, used to spray Agent Orange in Vietnam, as flight, maintenance, or medical crewmembers. See https://www.benefits.va.gov/compensation/docs/AO_C123_AFSpecialityCodesUnits.pdf Also, of note, the DoD has identified certain locations, outside of Vietnam, to include areas in Thailand, where herbicides were tested, used or stored. See https://www.publichealth.va.gov/docs/agentorange/dod_herbicides_outside_vietnam.pdf# Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In determining whether service connection is warranted for a disability, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As referenced above, there is a JMPR in this matter. In the JMPR the parties agreed that the Board failed to consider service connection under the theory of continuity of symptomatology. The JMPR specifically referenced 38 C.F.R. § 3.309(a), implying that the Veteran's peripheral neuropathy constitutes an organic disease of the nervous system, therefore qualifying as a chronic disease. The JMPR also noted a July 1970 service treatment record wherein it was stated that it reflected "complaints of pain in the right hand and numbness of right thumb..." and concluded that the Board erred in not considering whether service connection was warranted under 38 C.F.R. § 3.303(b), "as the evidence reflects notation of the condition in service and evidence of post-service symptomatology." Given the aforementioned, the Board will again assess whether service connection is warranted on either a direct theory of entitlement or a presumptive theory of entitlement (exposure to herbicide agents). However, the Board will now assess whether service connection is warranted under the theory of continuity of symptomatology and will provide a detailed analysis. The Veteran contends that his peripheral neuropathy is a result of his time in active service. Specifically, he contends that this condition is a result of Agent Orange exposure while serving during the Vietnam era on the Royal Thai Air Force Bases of Ubon and or when he spent a day in Vietnam. While in service, he was stationed at Ubon Air Station in Thailand where he worked on the flight line. During the hearing, he testified that his barracks were the closest to the perimeter of any barracks on the base. He stated that he learned that the police were spraying Agent Orange around their barracks and not mosquito spray. He described working on the flight line and coming into contact with F4s and canisters that contained Agent Orange. He also testified that he spent a day in Vietnam, calling it a daybreak. He reported experiencing tingling in 1972 or 1973. See May 2018 Hearing Transcript. There is no dispute that the Veteran has a current diagnosis of peripheral neuropathy of the hands, that he served during the Vietnam Era in the Air Force from July 1966 to June 1972, and that he was stationed at The Royal Thai Air Force Bases of Ubon from May 1968 to April 1969. The question is whether the Veteran's current disability is attributable to his military service. In assessing this question, the Board will provide analysis for the three different theories of consideration. Presumptive theory of entitlementAgent Orange exposure As stated above, early-onset peripheral neuropathy is an enumerated disease under the herbicide agent presumption, not peripheral neuropathy. The record does not illustrate a diagnosis of early-onset peripheral neuropathy. The record shows a diagnosis of peripheral neuropathy, several years following service. Nevertheless, the Veteran competently testified that he had tingling in the hands during service and although the record does not show an enumerated disease under 38 C.F.R. § 3.309, the Board will continue to assess whether the record shows that the Veteran was exposed to herbicide agents while in service. The Veteran's DD Form 214 does not reflect Vietnam service. It does illustrate his last duty assignment and major command as Air Base Wing Pacific Air Forces (PACAF) and his branch as Air Force. A notation in the remarks section reads "No, Vietnam: No/Member separated on a temporary record and members affidavit." His military personnel records show that he was a weapons control systems mechanic who performed maintenance on assigned F-4D aircraft. His records also show that he was stationed at Ubon from May 1968 to April 1969. A March 2013 Personnel Information Exchange System (PIES) response indicates that it was not able to determine whether the Veteran served in the Republic of Vietnam. The record did not provide conclusive proof of in-service country service. A September 2013 formal finding indicates a lack of information required to corroborate the Veteran's allegation of exposure to herbicide agent while in service. After considering the evidence of record, including the evidence showing the Veteran was not in Vietnam or its inland waterways at any point, the Board finds that the presumption is not warranted. There is no competent and credible evidence that the Veteran was exposed to herbicide agent in service. The Veteran provided testimony that he was present in Vietnam for one day during his service. He provided no details regarding this one-day trip to Vietnam. He has not provided any corroborating evidence showing presence in-country Vietnam, nor do any of his military records show service in Vietnam. His contentions are far outweighed by the more probative evidence of record, including his DD Form 214, the March 2013 PIES response, and the September 2013 formal finding that all show no proof of in country service. As such, the weight of the evidence is against the conclusion that the Veteran was in Vietnam. Additionally, the Board recognizes that the Veteran was awarded the Vietnam Service Medal (VSM), the Republic of Vietnam Campaign Medal (RVCM), the Small Arms Expert Marksmanship Ribbon (SAEMR), and the Air Force Manual (AFM) 900-3. However, such awards do not require physical presence in Vietnam. See Haas, 525 F. 3d 1168, (held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a VSM). Accordingly, the Veteran's receipt of the VSM, RVCM, SAEMR or AFM does not provide proof of active service inside the Republic of Vietnam. The Board acknowledges and appreciates the Veteran's contentions that he was exposed to Agent Orange while stationed in Ubon. However, there is no probative evidence of record that he was actually exposed to herbicide agent while in Thailand. He was at one of the Royal Thai Air Force Bases, but nothing in his military personnel records indicates, nor does the Veteran contend that he was a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter. He contends that in relation to all the other barracks, his barracks were located closest to the perimeter. This does not rise to the level of serving near the air base perimeter. His contentions are far outweighed by the probative evidence of record, including military personnel records, and the September 2013 formal finding that all illustrate no exposure to herbicide agents. Also, of note, the DoD list illustrates that any herbicide agents stored on Thailand were not stored at the Ubon AFB, where the Veteran was stationed. As such, the weight of the evidence is against the conclusion that he served on or near the perimeter of an air base in Thailand. Lastly, there is no presumption VA recognizes with respect to being in contact with F-4D aircraft, and the Veteran has not contended nor is there is anything in the record to indicate that the Veteran worked on a C-123 aircraft. As the probative evidence of record does not show that the Veteran was exposed to herbicide agents while in service, the presumption of exposure to herbicide agent based on service during the Vietnam era is not warranted. Therefore, service connection based on presumptive theory of entitlement, exposure to Agent Orange, is denied. Direct theory of entitlement A VA examiner provided an opinion in December 2020. As described in the March 2021 Board remand, the Board found this opinion to be inadequate. As such the Board will not provide details regarding this report and places low probative value on it. Also, as stated in the March 2021 remand, despite the confusing language stated in the December 2020 report, the Veteran has not contended nor does the record show that the Veteran's peripheral neuropathy existed prior to service. Also, the entrance examination of record reflects that the Veteran was healthy upon entrance. A VA examiner provided opinions in May 2021, opining that the Veteran's peripheral neuropathy of the hands is less likely than not due to service, manifested within one year of his June 1972 separation, or is otherwise related to service. She based her opinions on an in-person examination, and review of the file. She also opined that it would have been reasonable that he would have sought out treatment in between his separation and his first documented complaint in 2019 had he had neuropathy symptoms in his hands since service. The examiner explained that it is not unusual for some veterans not to seek medical treatment while in service. She also stated that although it often takes some time when they return home to begin to understand that they might need help, based on the culture of the military it is entirely unusual for a veteran to go for many years without seeking medical attention. Although she said it would not be unusual for the Veteran to delay seeking treatment, she said it would have been reasonable for him to seek out treatment at some point since service discharge. As the examiner completed a full review of the file, personally examined the Veteran and provided adequate rationale for her opinions, the Board places high probative value on the VA medical opinions. A medical opinion by a private doctor, dated May 2021, was submitted June 2021. The examiner stated that it is more likely than not that the Veteran's neuropathy is caused by or aggravated by his time in service. She stated that her opinion is based on the Veteran's statement and medical records. The rationale is lacking as it does not provide any detail as to what medical record or records supports her conclusion and appears to be wholly based on statements made by the Veteran. As such, the Board places low probative value on the statements provided by the private examiner. As exposure to an herbicide agent is not demonstrated, service connection for peripheral neuropathy as due to herbicide exposure cannot be granted on a direct basis, and the Veteran has offered no other theory of entitlement other than based on his unconfirmed exposure to herbicides in service. The earliest record of evidence to indicate a diagnosis of peripheral neuropathy is dated September 2013over four decades post his June 1972 separation. The Veteran testified that he experienced tingling in 1972 or 1973. Although he is competent to report that he had tingling in his hands during service, he is not competent to diagnose these in-service symptoms as peripheral neuropathy of the upper extremities as he is not shown to have medical expertise, and this type of diagnosis would require a diagnosis from a medical professional. Additionally, the Board finds that the May 2021 VA medical opinions far outweigh the Veteran's contentions. Therefore, the Board finds that the Veteran's peripheral neuropathy of the hands is not related to service, to include his claimed exposure to Agent Orange. As such, service connection on a direct theory of entitlement is denied. Continuity of symptomatology As stated above, the earliest record of evidence to indicate a diagnosis of peripheral neuropathy is dated September 2013. As there is no showing that peripheral neuropathy manifested to a degree of 10 percent within a year from separation from service-in June 1972, the presumption does not apply. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. "Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim." 38 C.F.R. § 3.303(b). The probative evidence does not show that the Veteran's peripheral neuropathy was noted during service or within a year post separation. As such the question before the Board is whether the evidence supports a continuity of symptomatology of the Veteran's peripheral neuropathy. Service treatment records do not document complaints of or treatment for peripheral neuropathy of the hands or symptoms related to such. There is a service treatment record dated July 1970 that shows the Veteran was in an automobile accident which caused him to lose consciousness, severe pain of the left lateral mid-chest, pain in the ribs and right hand, and numbness of the right thumb. Although numbness may be considered a symptom of peripheral neuropathy, this service treatment record alone does not equate to a report of symptoms related to peripheral neuropathy. Also, of note, the numbness of the right thumb was a symptom reported as a direct result of an automobile accident and there is nothing in that record or other service treatment records to illustrate any reports consistent with symptoms of peripheral neuropathy. In fact, the May 1972 separation examination shows that the upper extremities were normal, and the Veteran reported being in good health. Although the Veteran is competent to report symptoms such as tingling and numbness, the record does not show that he consistently reported such symptoms or that he sought treatment related to peripheral neuropathy until several years after separation. Despite, testifying that he experienced tingling of the hands while in service, a review of the file shows that the first documented record post service to show treatment/diagnosis of peripheral neuropathy is dated September 2013, decades after service. During an April 2010 VA routine examination, the examiner concluded that there was no numbness or tingling. There are VA records dated prior to September 2013 that show an active prescription for medication related to neuropathy (dated July 2012) and neuropathy (dated November 2010 and June 2011). However, these records are specific to neuropathy of the lower extremities, not the upper extremities. Even if the Board found that the November 2010 VA record was the earliest record to illustrate neuropathy of the lower extremities, this would illustrate a span of 38 years from separation to first reporting symptoms or seeking treatment. The May 2021 VA examiner opined that despite it being common that the Veteran would refrain from seeking treatment while in service, it is unlikely that he would refrain from seeking medical treatment for so many years post-service. Additionally, even when only looking at the Veteran's reporting, there is no indication of him dealing with symptoms consistent with neuropathy of the hands until nearly four decades after leaving military service. The May 2021 VA opinion was based on an in-person examination of the Veteran, detailed review of the file, and the medical knowledge of a trained, competent doctor. The examiner provided detailed, clear and thorough rationale to support her conclusion. Therefore, the Board places great probative value on it. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for peripheral neuropathy, to include as based on the theory of continuity of symptomatology. Even though the evidence shows that the Veteran has a current disability, the most probative evidence of record demonstrates that this was not related to his service. The lack of reporting as to the onset of his peripheral neuropathy symptoms in service and for years thereafter, in conjunction with the lack of treatment in service and the lack of any medical evidence showing treatment post service until decades after service tends to show lack of continuity of symptomatology related to peripheral neuropathy. Therefore, the findings of the May 2021 VA examiner are more probative as she considered the lay and medical evidence of record and included full reasoning for the opinion rendered. As the probative evidence does not illustrate a continuity of symptomatology, the element of nexus to service has not been met. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.