Citation Nr: 21007247 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-44 989 DATE: February 9, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to herbicide agent exposure, or as secondary to diabetes mellitus, is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to herbicide agent exposure, or as secondary to diabetes mellitus, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that peripheral neuropathy of the right lower extremity began during active service or is otherwise related to an in-service incident (to include herbicide agent exposure), nor was it proximately due to, the result of, or aggravated by his diabetes mellitus. 2. The preponderance of the evidence is against finding that peripheral neuropathy of the left lower extremity began during active service or is otherwise related to an in-service incident (to include herbicide agent exposure), nor was it proximately due to, the result of, or aggravated by his diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for service connection for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from December 1962 to December 1966, to include service in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeal (Board) on appeal from an October 2015 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board previously remanded the appeal in September 2019, and the matter has been returned for appellate consideration. As each directive of the Board’s September 2019 remand has been fulfilled (to include obtaining VA treatment records, allowing the Veteran to notify VA of private treatment records or to submit such records himself, and to obtain an adequate VA examination and opinion), the Board finds substantial compliance with its remand instructions such that the case may move forward. Service Connection Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current 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 also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(b). VA has also established a presumption of service connection for certain diseases found to be associated with exposure to an herbicide agent. See 38 U.S.C. § 1116, 38 C.F.R. § 3.309(e). Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, provided that herbicide exposure is established. Id.; 38 C.F.R. § 3.307(d). The term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 (the Vietnam Era). 38 C.F.R. § 3.307(a)(6). A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to such herbicide agents. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6). Though early onset peripheral neuropathy is among the disabilities listed at 38 C.F.R. § 3.309(e) for which presumptive service connection is warranted, as discussed, the Veteran’s particular disability has never been deemed to be early onset peripheral neuropathy. This does not, however, preclude a claimant from establishing service connection for the claimed disorders on direct basis, to include as due to exposure to herbicides. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to herbicide agent exposure, or as secondary to diabetes mellitus 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to herbicide agent exposure, or as secondary to diabetes mellitus. The Veteran is seeking service connection for bilateral peripheral neuropathy of the lower extremities. The Veteran contends that his bilateral peripheral neuropathy is due to his active service, to include herbicide exposure, and/or his service-connected diabetes mellitus. As to the first element of secondary service connection, current disability, the record indicates that the Veteran has a diagnosis of bilateral peripheral neuropathy. Therefore, this element is met. The Veteran’s service personnel records (SPRs) reflect that his military occupational specialty (MOS) was Aircraft Mechanic. He was a member of the 307th Tactical Fighter Squadron, which deployed to Bien Hoa Air Base in 1965 the Republic of Vietnam. He was also treated for an ear infection at the Bien Hoa Air Base in August 1965, which further supports service in the Republic of Vietnam. As verified by the Veteran’s DD Form 214 and SPRs, the Veteran served in Vietnam during the requisite period and is, thus, presumed to have been exposed to herbicide agents, to include Agent Orange, during service. See 38 U.S.C. §§ 1116(f), 1154(a); 38 C.F.R. §§ 3.307(a)(6)(iii). Moreover, the Board notes that the Veteran is service-connected for diabetes mellitus. As such, the questions for the Board are whether the Veteran’s bilateral peripheral neuropathy is related to his in-service exposure to herbicide, and whether the Veteran’s bilateral peripheral neuropathy is proximately due to, caused by, or aggravated by his service-connected diabetes mellitus. The Veteran was initially afforded the March 2013 VA examination to determine whether his bilateral peripheral neuropathy is secondary to his service-connected diabetes mellitus. The VA examiner found that the Veteran’s bilateral peripheral neuropathy is less likely than not proximately due to or the result of the Veteran’s diabetes mellitus. The VA examiner highlighted that the Veteran’s onset of peripheral neuropathy were at least 10 years prior to the diagnosis of diabetes mellitus. The VA examiner acknowledged that peripheral neuropathy can precede the diagnosis of diabetes, however the VA examiner found the interval between onset of peripheral neuropathy symptoms and the diagnosis of diabetes mellitus to be too long for the conditions to be related. The Board, however, remanded the claims in September 2019. The Board remand found that the March 2013 VA examination to be inadequate specifically for the failure to address whether the Veteran’s bilateral peripheral neuropathy was aggravated by his service-connected diabetes. Additionally, the September 2019 remand directed the RO to obtain a medical opinion addressing whether the Veteran’s bilateral peripheral neuropathy is related to herbicide exposure without consideration of the presumption for herbicide exposure. To that end, the Veteran was afforded a February 2020 VA examination. First, the February 2020 VA examination found that the Veteran’s bilateral peripheral neuropathy was unrelated to his in-service herbicide exposure. The VA examiner cited that the National Academy of Sciences, Engineering, and Medicine (NASEM) found only a limited/suggestive evidence that neuropathy of acute or subacute onset may be associated with herbicide exposure. Moreover, she also found there was inadequate/insufficient evidence linking late onset peripheral neuropathy with herbicide exposure. The NASEM report opined that, “if TCDD (herbicides) is associated with the development of transient acute and subacute peripheral neuropathy, the disorder would become evident shortly after exposure, there is no evidence that new cases develop long after service in Vietnam are associated with herbicide exposure that occurred there.” The National Academy of Sciences in 2014 also found no evidence to support the association between exposure to COIs and the development of delayed onset-chronic neuropathy. The VA examiner also addressed whether the Veteran’s peripheral neuropathy is secondary to his service-connected diabetes mellitus. The VA examiner opined that it is less likely than not proximately due to or the result of the Veteran’s service-connected diabetes mellitus. The VA examiner highlighted that the Veteran developed symptoms of neuropathy in 2002 and 2006, in the right and left leg respectively. The Veteran’s nerve conduction study in 2006 showed bilateral peripheral neuropathy but was not diagnosed with diabetes until 2011. The VA examiner acknowledged that peripheral neuropathy can precede the diagnosis of diabetes, however the VA examiner found the interval between onset of peripheral neuropathy symptoms and the diagnosis of diabetes mellitus (9 years and 5 years, respectively) to be too long for the conditions to be related. Moreover, the VA examiner found no evidence of aggravation of the Veteran’s bilateral peripheral neuropathy due to the Veteran’s diabetes mellitus. Specifically, she noted that the Veteran’s symptoms of neuropathy were “essentially the same” as their initial diagnosis, and that the examination was “not appreciably [or] significantly different” after his diabetes diagnosis. In this case, as to the issue of whether the Veteran’s bilateral peripheral neuropathy is related to the Veteran’s in-service herbicide exposure and/or proximately due to, caused by, or aggravated by his service-connected diabetes, the Board finds that the February 2020 VA examination report is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran’s entire claims file, in consideration of the Veteran’s reported history, prior physical evaluation of the Veteran, and pursuant to Board’s remand instructions the February 2020 VA examiner provided a complete and thorough rationale in support of her opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Most of the Veteran’s contentions to this point have revolved around the question of whether he was exposed to herbicide agents during his active service. The Veteran has furnished statements, articles, and maps delineating his service in the Republic of Vietnam, as well as his likelihood of exposure to herbicide agents. The Board concedes that the Veteran was exposed to herbicide agents during his active service. Indeed, such exposure was the basis for the grant of service connection for his diabetes. Ultimately, the question is whether the Veteran’s peripheral neuropathy of the bilateral lower extremities is related to this exposure, or whether it is secondary to the Veteran’s diabetes. On this point, the objective evidence as detailed is clear that no such link exists. To the extent that the Veteran contends that his peripheral neuropathy of the bilateral lower extremities is related to his in-service herbicide agent exposure or to his service-connected diabetes, the Board finds that his statements as to causation are not competent. Determining a relationship between his current disability and either his active service or his service-connected diabetes is complex, requiring specialized medical knowledge or training which the Veteran is not shown to have. Instead, the Board finds that the most competent opinion regarding such a relationship comes from the February 2020 VA examiner. (Continued on next page) Thus, the preponderance of the competent evidence weighs against a finding that the Veteran’s bilateral peripheral neuropathy is casually related to his in-service herbicide agent exposure, or that it is caused or aggravated by his service-connected diabetes mellitus. Thus, the benefit of the doubt rule is not applicable. See 38 U.S.C.§ 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.R. Higgins, 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.