Citation Nr: 21009706 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 20-16 139 DATE: February 23, 2021 ORDER Entitlement to service connection for peripheral neuropathy of right upper extremity is denied. Entitlement to service connection for peripheral neuropathy of left upper extremity is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity is denied. Entitlement to service connection for peripheral neuropathy of left lower extremity is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era, and he is presumed to have been exposed to Agent Orange or other herbicide agents during that time. 2. Peripheral neuropathy of bilateral upper and lower extremities did not have onset during active service or within of discharge; and is not etiologically related to military service, to include exposure to Agent Orange. 3. The Veteran has not been diagnosed with early-onset peripheral neuropathy. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral neuropathy of right upper extremity have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for peripheral neuropathy of left upper extremity have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for peripheral neuropathy of left lower extremity have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1963 to March 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision by Department of Veterans Affairs (VA) Regional Office (RO). Service Connection 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, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a)(6)(iii). In this case, the record shows that the Veteran served in Vietnam during the applicable period and he is presumed to have been exposed to herbicide agents therein. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1113 (b) (2012); 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Pursuant to 38 C.F.R. § 3.309 (e), veterans who have been exposed to an herbicide agent during active service are entitled to presumptive service connection for certain listed diseases, including early-onset peripheral neuropathy. Early-onset peripheral neuropathy must have become 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. 38 C.F.R. § 3.307 (a)(6)(ii). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994) (citing 38 U.S.C. § 1113 (b) and 1116 and 38 C.F.R. § 3.303). The Board also notes that certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year. 38 C.F.R. §§ 3.307, 3.309(a). Organic diseases of the nervous system, including peripheral neuropathy, are considered by VA to be chronic diseases. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); see also Nix v. Brown, 4 Vet. App. 462, 466 (1993) (peripheral neuropathy). 1. Entitlement to service connection for peripheral neuropathy of right upper extremity 2. Entitlement to service connection for peripheral neuropathy of left upper extremity 3. Entitlement to service connection for peripheral neuropathy of the right lower extremity 4. Entitlement to service connection for peripheral neuropathy of left lower extremity The Veteran contends he developed peripheral neuropathy of the bilateral upper and lower extremities due to exposure to herbicide agents during his military service. Initially, the Board notes that the Veteran’s peripheral neuropathy does not meet the definition of early-onset peripheral neuropathy as defined in 38 C.F.R. § 3.309 (e). Early-onset peripheral neuropathy is defined to mean that peripheral neuropathy manifested to a degree of 10 percent or more within one year after the last date on which a veteran was exposed to an herbicide agent during active service. Rather, the competent and probative evidence supports a diagnosis of peripheral neuropathy many decades after service, in 2016, which was confirmed in October 2017 as involving the Veteran’s bilateral hands and feet. Furthermore, service treatment records, to include the Veteran’s separation examination, were silent for complaints, diagnosis, or treatment for peripheral neuropathy or any neuropathic symptoms. Post-service, in November 1967, the Veteran reported for a medical examination for disability evaluation, complaining of a right wrist cyst and right knee pain, but no peripheral neuropathy or neuropathic symptoms. Thus, the evidence shows that his peripheral neuropathies appeared many years after separation from active service. Notably, the Veteran does not contend that his peripheral neuropathies emerged during service. Therefore, service connection is not warranted based upon the Veteran’s presumed exposure to herbicide agents during active service or on the basis of a chronic disease under 38 C.F.R. §§ 3.307, 3.309(a), and 3.303(b). Notwithstanding the foregoing, the Board has considered whether service connection is warranted under a direct theory of entitlement. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155, 162-64 (1997). However, the preponderance of the evidence is against finding a medical nexus exists between the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities and an in-service injury, event, or disease, to include herbicide agent exposure. The record indicates that the Veteran suffered a severe workplace back injury in June 2007. Later in June 2007, the Veteran underwent a discectomy and foraminotomy to alleviate what his daughter described in May 2015 correspondence as an inability to move his legs as well as leg numbness. Medical records also show that the Veteran underwent a lumbar spine fusion surgery in July 2011 to help stabilize his spine. This included the placement of “hardware.” Records from May 2017 suggest the Veteran experienced parkinsonism like symptoms that “could be” caused by Agent Orange. In February 2018, a private physician stated, “the Veteran has had a workup to rule out common causes of neuropathy. He has definite history of exposure to Agent Orange. The literature does state that many Veteran had neuropathy symptoms from exposure to agent orange.” The Veteran was provided a VA examination in September 2018. The examiner diagnosed the Veteran with peripheral neuropathies, but concluded that they are less likely than not related to his military service. The examiner noted the Veteran’s 2007 workplace injury, his spinal surgeries, and explained that the Veteran’s neuropathies were consistent clinically with the Veteran’s previous lumbar pathology requiring lumbar decompression. The Board finds this medical opinion persuasive and highly probative as it reflects consideration of all relevant facts and the examiner provided a cogent rationale for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In October 2018, an orthopedist who had treated him for “a few conditions” stated, “I have reviewed notes by neurology and even pathologic sections that [the Veteran] has given me for recent nerve staining that confirms conduction abnormality consistent with symptoms of neuropathic process that in general seems very classic from Agent Orange exposure” and concluded “Agent Orange exposure remains a highly likely cause” of the Veteran’s neuropathies. In November 2018, a VA neurologist stated “sensory symptoms and pain as described by previous NVS suggesting distal neuropathy… we have not identified any other cause of the neuropathy and as previously stated I concur with his other assessment that Agent Orange exposure remains a likely cause of his neuropathy.” The Board acknowledges there is positive evidence to support this claim. However, this evidence is less probative than the September 2018 VA examination and corresponding opinion. Notably, none of the statements suggesting a positive association between the Veteran’s neuropathies and his Agent Orange exposure considered the relevance of the Veteran’s 2007 workplace injury or subsequent surgeries. For example, records from the physician who suggested a positive associated in February 2018 indicate he was only aware of the Veteran’s 2011 lumbar spine fusion, not the Veteran’s 2007 decompression surgery. He did not address either in his opinion. Records from the physician who wrote the October 2018 letter also indicate he was unaware of the Veteran’s 2007 decompression surgery. He also did not address either in his opinion. Finally, the November 2018 VA neurologist appeared aware of both surgeries, as they are listed in the Veteran’s medical history, but did not address them in his opinion. Thus, the positive evidence is afforded no probative value as it is either based on inaccurate facts, or fails to discuss all the relevant evidence. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions because examiner failed to consider certain relevant information); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Finally, while the Veteran asserts that his peripheral neuropathies are related to service, he is not competent to do so. This issue is also medically complex, as it requires complicated diagnostic testing such as nerve conduction studies and neurological examination. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which preponderates against this claim. Moreover, the Board acknowledges the representative’s request that the Board remand these matters to afford the Veteran a VA examination addressing the above-noted positive evidence. However, it is rather the Board’s duty to evaluate the competency and probative value of medical evidence. See Hayes v. Brown, 5 Vet. App. 60, 69 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1991); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In short, although the Veteran asserts that his disabilities are related to service, the preponderance of the evidence does not show that the Veteran’s peripheral neuropathies of the bilateral upper and lower extremities had their onset in or are otherwise etiologically related to his military service, to include herbicide agent exposure. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. As such, his claim for entitlement to service connection must be denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.A. Infante, 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.