Citation Nr: 21005736 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-30 234 DATE: February 2, 2021 ORDER Entitlement to service connection for left lower extremity motor and sensory polyneuropathy, to include as secondary to herbicide agent exposure, is denied. Entitlement to service connection for right lower extremity motor and sensory polyneuropathy, to include as secondary to herbicide agent exposure, is denied. FINDINGS OF FACT 1. The Veteran’s left lower extremity motor and sensory polyneuropathy did not have its onset during active service or manifest to a compensable degree within a year of separation from service, and is not otherwise shown to be related to service or any event of service. 2. The Veteran’s left lower extremity motor and sensory polyneuropathy did not have its onset during active service or manifest to a compensable degree within a year of separation from service, and is not otherwise shown to be related to service or any event of service. CONCLUSIONS OF LAW 1. The criteria for service connection for left lower extremity motor and sensory polyneuropathy, to include as secondary to herbicide agent exposure, are not met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for right lower extremity motor and sensory polyneuropathy, to include as secondary to herbicide agent exposure, are not met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to September 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a hearing before the undersigned Veteran’s Law Judge (VLJ); a transcript is of record. These matters were previously before the Board in September 2019. At that time, the Board remanded the issues to obtain a medical examination for an etiology opinion. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The record reflects a VA medical opinion issued in December 2019 which addressed the issues set out by the remand. As such, the Board finds the September 2019 remand directives have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For certain chronic diseases, including organic diseases of the nervous system such as neuropathy, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was “noted” during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In addition, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. For purposes of the presumption, “herbicide agents” are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § § 3.307 (a)(6)(i). As relevant to the instant case, veterans 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, are presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). In the instant case, the Veteran’s service personnel records confirm his service in the Republic of Vietnam and his in-service exposure to herbicide agents has been conceded. For those veterans who have been exposed to herbicide agents, certain diseases, to include early onset peripheral neuropathy, are acknowledged to be presumptively related to such exposure provided that such becomes 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, naval, or air service. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). Notwithstanding the foregoing presumption, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for left lower extremity motor and sensory polyneuropathy, to include as secondary to herbicide agent exposure 2. Entitlement to service connection for right lower extremity motor and sensory polyneuropathy, to include as secondary to herbicide agent exposure The Veteran contends that his bilateral lower extremity motor and sensory polyneuropathy disabilities are due to his active military service, including in-service herbicide exposure. Specifically, he contends that he began experiencing bilateral foot numbness during his active duty service in Vietnam, that he noted bilateral foot symptomatology when he separated from service and that he continues to have the same symptoms since separation. In the September 2019 remand, Board found that the Veteran had in-service herbicide exposure and there is a diagnosis of bilateral lower extremity motor and sensory polyneuropathy of record. See October 1998 Private Medical Treatment Record. Thus, the issue remaining before the Board is whether those disabilities are related to active military service. While there is no entrance examination of record, the Veteran’s service treatment records (STRs) show that the Veteran checked that he previously had foot problems in connection with his September 1967 separation examination. No specific foot problems were identified. Private treatment records from October 1998 show that the Veteran sought care for bilateral foot numbness and tingling on the balls of his feet and heel pain, which he reported experiencing for approximately one year. The physician, Dr. S.B., conducted nerve conduction studies pursuant to which he diagnosed moderate, distal bilateral lower extremity motor and sensory polyneuropathy. Dr. S.B. reported the neuropathy may be related to daily alcohol use versus some other metabolic abnormalities such as diabetes. Dr. S.B. evaluated the Veteran again in April 2006, noting that the Veteran’s complaints persisted, like those of October 1998, of bilateral numbness and tingling of the toes and soles of the feet. Additionally, the April 2006 private treatment record shows that the Veteran reported being evaluated by several other physicians without specific etiology of neuropathy being uncovered and that he had reduced his alcohol intake. Throughout the appeal the Veteran reported that he saw a private physician around 1970 for a variety of things, including his bilateral feet complaints and that all the doctors would do for years every time he complained, would just pinch his toes and see how fast the blood would return. See February 2016 Notice of Disagreement and June 2016 VA Form 9. The Veteran reported receiving private medical treatment for general health care from 1970 – 1998, that he mentioned his feet during those visits and attempted to contact the doctors he saw over the years to obtain records, but they no longer exist and he believes the doctors are now dead. June 2016 VA Form 9. The record shows that some records were associated to the file from 1998, but not dating back to 1970 and that VA’s request for such records were either met with no response or no records were found. The Veteran did not report VA or other federal facility medical treatment during that time period. The Veteran also reported that while the October 1998 medical record shows bilateral foot complaints for only a year, the symptoms persisted since Vietnam and he sought treatment in the 1990s, when his bilateral lower extremity disabilities became problematic. See June 2016 VA Form 9. At the June 2019 hearing, the Veteran testified that he first experienced numbness and sensation issues in his feet shortly after his service in Vietnam, that he commented on the symptoms in connection with his September 1967 separation examination, and that the same symptoms have continued since separation. The Veteran also testified that because he was in a combat zone, he felt his complaints were not great enough to seek medical attention and that in light of being a draftee, when he separated, he did not want to wait on any further examinations regarding his foot problems in order to leave Vietnam as soon as possible. The Veteran underwent a VA examination in December 2019, in connection with which he reported worsening of his disabilities over the years, particularly since the mid-1990s. The examiner noted that for VA purposes, early onset peripheral neuropathy is shown by becoming manifest to a degree of 10 percent or more within a year of last exposure to an herbicide agent, but opined that because the Veteran’s September 1967 report of foot trouble was not further explained in his separation reports of medical examination or medical history, and there was no documentation of neuropathy until 1998, it was less likely than not that his current bilateral lower extremity disabilities began in service or were those reported on the separation examination. The Board finds the December 2019 medical opinion adequately supported and highly probative. The opinion is adequate because the examiner’s rationale is logical, well-reasoned, and based on consideration of the entire record, to include the Veteran’s reported history and service treatment records (STRs). The Board therefore finds the December 2019 medical opinion highly probative on the issue of nexus. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against the service connection claim for bilateral lower extremity motor and sensory polyneuropathy disabilities. In so finding, the Board gives significant probative value to the December 2019 VA examination report and nexus opinion. Here, the VA examiner reviewed the Veteran’s claims file and statements of symptomatology and conducted physical examination of the Veteran. Based on this examination, the examiner opined that it was less likely than not that the Veteran’s current disabilities are related to service. This opinion is the only competent medical opinion of record to address the medical relationship, if any, between the Veteran’s bilateral lower extremity disabilities and service. The medical opinion provides a clear rationale based on an accurate and complete discussion of the evidence of record. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993).  The basis for the negative opinion is consistent with the evidence of record. Neither the Veteran nor his representative has presented or identified any contrary medical opinion that would support the claim for service connection for a right or left lower extremity disability. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The only other evidence of record supporting the Veteran’s claims is his own lay statements. As detailed above, in those statements, the Veteran contends that his bilateral lower extremity disabilities began in service and have continued since service; thus, they are related to service. Although the Veteran is competent to relay what symptoms he experiences with regard to his disorders, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of a lower extremity disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran does not possess the requisite expertise to render such an opinion. That is, the Veteran is not competent to diagnose a neurological disorder and etiologically relate the disorder to service. Further, as noted, the December 2019 medical opinion is of more probative value than the Veteran’s lay assertions. The VA examiner considered the Veteran’s statements, service records, examination findings and other evidence of record in finding that the Veteran’s bilateral lower extremity motor and sensory polyneuropathy was not service related. Additionally, the length of time between the Veteran’s separation and the first bilateral lower extremity complaints of record is a factor that weighs against the Veteran’s claims. While the Veteran maintains he experienced bilateral lower extremity disability symptomatology since he served in Vietnam, no specific foot disorder was identified in service, and the October 1998 treatment record shows he reported symptomatology beginning approximately one year prior, or 1997. The Board affords the Veteran’s October 1998 statements regarding an approximate 1997 onset of bilateral lower extremity disability symptomatology high probative value, as statements made while seeking medical treatment are significant and given weight and credibility. Struck v. Brown, 9 Vet. App. 145 (1996); Rucker v. Brown, 10 Vet. App. 67 (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 to receive proper care). The Board adds that based on the foregoing it finds that the Veteran’s bilateral lower extremity disabilities did not manifest to a compensable degree within a year separation from service, nor does it show that the Veteran’s symptoms continued in symptomatology since service. Bilateral lower extremity motor and sensory polyneuropathy was not noted in service and there is no probative and persuasive evidence of record establishing continuity of symptomatology since service. The December 2019 examiner expressly found that the Veteran’s current disorder were not those reported on the separation examination. In sum, the probative and persuasive evidence does not establish that the Veteran’s right or left lower extremity disability is related to his active duty in any way, either on a direct or presumptive basis. Therefore, the evidence weighs against the claims for service connection for bilateral lower extremity disabilities. Accordingly, the Veteran’s claims must be denied. The benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Battaile 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.