Citation Nr: 21008850 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 20-24 510 DATE: February 18, 2021 ORDER Entitlement to service connection for left lower peripheral neuropathy due to herbicide exposure, including as secondary to service-connected right ankle condition, is denied. Entitlement to service connection for right lower peripheral neuropathy due to herbicide exposure, including as secondary to service-connected right ankle condition, is denied. FINDINGS OF FACT 1. The Veteran did not have an early onset of bilateral lower peripheral neuropathy. 2. The Veteran’s bilateral lower peripheral neuropathy is not related to service, including herbicide exposure. 3. The Veteran’s bilateral lower peripheral neuropathy is not proximately due to nor aggravated by his service-connected right ankle condition. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left lower peripheral neuropathy due to herbicide exposure, including as secondary to service-connected right ankle condition, have not been met. 38 U.S.C. §§ 1110, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for right lower peripheral neuropathy due to herbicide exposure, including as secondary to service-connected right ankle condition, have not been met. 38 U.S.C. §§ 1110, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty service from August 1964 to April 1992, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902 (c). 38 U.S.C. § 7107 (a)(2). In the August 2018 Board remand, the RO was requested to provide supplemental medical opinions for the Veteran’s bilateral lower peripheral neuropathy. In September 2020, supplemental medical opinions were completed. These opinions were adequate because they addressed all theories of entitlement to service connection and provided rationales. Therefore, there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed to herbicides unless there is affirmative evidence to establish that the veteran was not exposed. 38 C.F.R. § 3.307 (a)(6)(iii). Certain diseases are deemed associated with herbicide exposure under current law. The list of those diseases includes early onset peripheral neuropathy. 38 C.F.R. § 3.309 (e). Peripheral neuropathy must have become manifest to a compensable degree within one year after a veteran’s last in-service exposure in order to qualify for the presumption of service connection. 38 C.F.R. § 3.307(a)(6)(ii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 ; 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). Service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). A veteran is entitled to the benefit of the doubt, standard of proof for benefit claim decisions. 38 U.S.C. § 5107(b). The benefit of the doubt is applicable when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for left lower peripheral neuropathy due to herbicide exposure, including as secondary to service-connected right ankle condition, is denied. 2. Entitlement to service connection for right lower peripheral neuropathy due to herbicide exposure, including as secondary to service-connected right ankle condition, is denied. The Veteran contends that his bilateral lower peripheral neuropathy is due to herbicide exposure. VA has conceded that he served in Vietnam. Therefore, he is presumed to have been exposed to herbicides. For example, he stated that he was hospitalized in May 1973 due to hepatitis, which resulted from herbicide exposure. A May 1973 STR noted treatment for possible hepatitis infection. The Veteran asserts that medical studies note that hepatitis can cause peripheral neuropathy and can influence the nervous system that can cause early onset of peripheral neuropathy. In support, he provided a peripheral neuropathy medical article from Mayo Clinic where is notes that hepatitis is a risk factor for peripheral neuropathy. The Veteran does not have service-connected hepatitis. In a June 1992 rating decision, the RO denied service connection for status post hepatitis infection. Therefore, service connection for peripheral neuropathy secondary to hepatitis is not for consideration. In the December 1988 STR, it was noted that the Veteran complained of cramps on both side of his legs. The Veteran underwent a VA peripheral nerves examination in January 2020. The examiner diagnosed bilateral lower extremity peripheral neuropathy. The Veteran reported that he had cramps in both calves during service, and two to three years later he developed numbness in his left calf. He stated that at first he thought it was because of dehydration but later believed it was due to herbicide agent exposure. In the January 2020 VA medical opinion, the examiner opined that the Veteran’s bilateral lower peripheral neuropathy is less likely than not proximately due to or the result of the Veteran’s service-connected right ankle condition. The VA examiner reasoned that the Veteran’s bilateral lower peripheral neuropathy and right ankle condition are not medically related. Also, the VA examiner stated that medical literature does not support a medical relationship and explained that peripheral neuropathy can result from traumatic injuries, infections, metabolic problems, inherited causes, and exposure to toxins. In the September 2020 VA medical opinion, the VA examiner determined that the Veteran did not have an early onset of bilateral lower peripheral neuropathy. Also, the VA examiner opined that the Veteran’s bilateral lower peripheral neuropathy is less likely than not caused by herbicide exposure. First, the VA examiner reasoned that the Veteran’s bilateral lower peripheral neuropathy was diagnosed beyond the time lapse that allows a “presumptive” association. Second, the VA examiner found that the Veteran’s peripheral neuropathy was not directly related to exposure to herbicide agents because an etiological association between the two is not supported by current peer review medical literature. Here, he determined that there is no objective evidence that the Veteran has symptomatology/manifested while in service or had onset of his condition while in service. Also, the Veteran’s contentions are completely and utterly inconsistent with over 20 years of medical records where he denied any significant medical issues on a yearly basis. Also, the VA examiner acknowledged the Veteran’s cramps; however, he explained that “[c]ramps are not associated with neuropathy, nor a neuropathy presents ‘in bouts’ that comes and goes – neither of those described scenarios are consistent with the claimed condition and does not follow common core medical knowledge of this condition.” Regarding secondary service connection, the VA examiner opined that the Veteran’s bilateral lower peripheral is not caused, related to, nor aggravated in any measurable way beyond its natural progression, by his service-connected right ankle condition. The VA examiner reasoned that the Veteran’s right ankle condition is documented as resolved and without sequelae on his medical records. Overall, the VA examiner determined that an etiological nexus cannot be sustained or supported by any peer reviewed medical literature. Based upon review of the record, the Board finds the Veteran’s bilateral lower peripheral neuropathy is not due to herbicide exposure, and it is not proximately due to or aggravated by his service-connected right ankle condition. The January 2-2020 and September 2020 VA medical opinions are probative because they are based on a complete review of the Veteran’s medical record and his lay statements regarding his symptomatology. Also, it provides a sufficient rationale for the negative etiology of the Veteran’s bilateral lower peripheral neuropathy based on clinical experience and medical literature. Id. The Board acknowledges the Veteran’s contentions that his bilateral lower neuropathy is due to herbicide exposure or to his in-service hepatitis. While he is competent to report symptoms such as cramps, he is not competent to provide an opinion as to the etiology of his bilateral lower neuropathy because such knowledge is not answerable by the application of knowledge within the realm of a lay person. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cr. 2007). Determining the etiology of peripheral neuropathy is a complex medical decision because it requires knowledge of biological processes, pathology, and anatomical relationships. The Veteran in this case does not have skills, expertise, or medical training needed to make such a complicated determination. Additionally, the Board acknowledges the Mayo Clinic medical article the Veteran submitted. Generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case does not provide competent evidence to establish a nexus. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Although the medical article lists hepatitis as a risk factor for peripheral neuropathy, there is no supporting medical evidence that the general principles cited in the article relate to the specific situation of the Veteran. Mattern v. West, 12 Vet. App. 222, 228 (1999). Therefore, the Board assigns low probative weight to the medical article. Given that the preponderance of the evidence is unfavorable to the claim, VA’s benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.1. Accordingly, the Board finds the preponderance of the evidence is against the claim and service connection is denied. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, 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.