Citation Nr: 21010879 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-16 685 DATE: February 25, 2021 ORDER Service connection for right lower extremity neuropathy is denied. FINDINGS OF FACT The Veteran’s right lower extremity peripheral neuropathy is proximately due to, or the result of, his nonservice-connected diabetes mellitus, and is not due to any in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy of the right lower extremity to include as secondary to diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from May 1971 to April 1979 and on active duty with the United States Navy from May 1979 to November 1988. The Veteran served in Korea from June 1974 to June 1976. This case is before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO, in pertinent part, denied service connection for right lower extremity neuropathy. The Veteran’s notice of disagreement (NOD) was received in August 2016. The RO issued the statement of the case (SOC) in January 2017 and the Veteran’s VA Form 9 substantive appeal was received in March 2017. In January 2020, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. In March 2020, the Board remanded the case to the RO for further development and adjudicative action. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present 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 or aggravated during service”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal “presumption” by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. Previously, a claimant who, during active military service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the DoD, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period is presumed to have been exposed to an herbicide agent during such service. 38 C.F.R. § 3.307(a)(6)(iv). Recent legislation, passed after the September 2018 Board remand of this matter, has expanded the presumption of herbicide agent exposure for certain veterans who served in Korea. See 38 U.S.C. § 1116B. Specifically, the legislation provides that the presumption of exposure will apply to a veteran "who, during active military, naval, or air service, served in or near the Korean [DMZ], during the period beginning on September 1, 1967, and ending on August 31, 1971." In a case where a veteran is alleging herbicide exposure outside of those locations and/or date ranges, the presumptive provisions do not apply, and exposure must be determined on a case-by-case basis. See 38 C.F.R. § 3.309 (e). Once it is established that a veteran was in fact exposed to a qualifying herbicide, VA will presume that a disease listed under 38 C.F.R. § 3.309 (e) is due to the exposure to herbicides. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). 1. Entitlement to service connection for right lower extremity neuropathy. The Veteran contends that his right lower extremity neuropathy is related to active service. During the January 2020 hearing, the Veteran stated that his right lower extremity neuropathy is secondary to his diabetes mellitus (DM). Service connection for DM was initially denied in a January 2017 rating decision. In a June 2017 rating decision, the RO determined that evidence received following the January 2017 rating decision was not new and material, and therefore confirmed and continued the prior denial of service connection for DM. The Veteran did not appeal that determination. The Veteran filed a supplemental claim in January 2020 and in a May 2020 decision, the RO again denied the claim for service connection for DM. Initially, the Board notes that the Veteran and his representative have consistently asserted that his lower extremity neuropathy is secondary to his DM which is not service-connected. See September 2016 Fully Developed Claim; see also January 2020 Board hearing transcript. However, other potential theories of entitlement must be considered and are addressed below. The Veteran’s service treatment records (STRs) are silent for complaints or treatment for right lower extremity neuropathy. The Veteran served in Korea outside of the time period required for presumptive service connection for early-onset peripheral neuropathy. Notably, the Veteran reported first noticing numbness in his right lower extremity in 2010 or 2015 and has not been diagnosed with early onset peripheral neuropathy. Compare January 2016 private medical opinion with January 2020 Board hearing transcript at 3. Thus, service connection on a presumptive basis is not warranted. While the Veteran claims he was exposed to herbicides including Agent Orange while serving in Korea, there has been no formal finding that he was exposed to herbicides during active service. In any case, the medical evidence of record, including private opinions submitted by the Veteran, indicates that the Veteran’s right lower extremity neuropathy is secondary to his DM. In January 2017, the Veteran submitted a January 2016 private medical evaluation and opinion from Dr. A.B. The Veteran underwent NCS/EMG testing for the lower extremities. Dr. A.B. found that the EMG revealed moderately severe chronic sensory and motor peripheral polyneuropathy with axonal and demyelinating features most likely on the basis of diabetes. Dr. A.B. found no evidence for lumbosacral radiculopathy. Similarly, a December 2019 private medical opinion stated that the Veteran has been diagnosed with “significant diabetes mellitus with significant neuropathy.” VA treatment records dated June 2017, January 2020, and June 2020 reveal a diagnosis of diabetic peripheral polyneuropathy based on EMG testing. The Veteran has a service-connected lumbar spine disability. The Veteran underwent a June 2015 VA examination to evaluate his service-connected lumbar spine disability. The VA examiner found no evidence of right lower extremity radiculopathy related to the Veteran’s lumbar spine disability. In May 2017, an addendum VA medical opinion was obtained. The VA examiner stated that while the Veteran has thoracolumbar degenerative disc disease which is service-connected, MRIs show that he does not have spinal stenosis or nerve root impingement. The examiner also noted that the Veteran does not have intervertebral disc syndrome or sciatica. Thus, the VA examiner concluded that it is less likely than not that the EMG findings showing peripheral neuropathy are due to his lumbar spine disability. A June 2020 VA examination similarly found no evidence of right lower extremity radiculopathy associated with the Veteran’s lumbar spine disability. While some treatment notes suggest or suspect that the Veteran’s right lower extremity neuropathy is related to his lumbar spine disability or otherwise unrelated to his DM (see VA treatment notes dated October 2015, February 2016, January 2017), these statements do not appear to be based on objective EMG or MRI testing and are outweighed by the other evidence of record which specifically indicates that the Veteran’s neuropathy is unrelated to his lumbar spine disability and is secondary to his DM and provides rationale based on objective EMG and MRI testing. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The claim of entitlement to service connection for peripheral neuropathy of the right lower extremity is denied. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Modesto, Victor 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.