Citation Nr: 21011592 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-36 391 DATE: March 2, 2021 ORDER Entitlement to service connection for left upper extremity peripheral neuropathy is denied. Entitlement to service connection for right upper extremity peripheral neuropathy is denied. Entitlement to service connection for left lower extremity peripheral neuropathy is denied. Entitlement to service connection for right lower extremity peripheral neuropathy is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s bilateral upper and lower extremity peripheral neuropathy began during active service or is otherwise related to an in-service injury or disease, to include herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for left upper extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2019). 2. The criteria for service connection for right upper extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2019). 3. The criteria for service connection for left lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2019). 4. The criteria for service connection for right lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from January 1967 to January 1970, with service in the Republic of Vietnam from April 1969 to January 1970. These matters come to the Board of Veterans’ Appeals (Board) from a May 2017 rating decision which denied service connection for bilateral upper and lower extremity peripheral neuropathy. In September 2019, the Veteran and his son testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. In December 2019, the Board remanded the matter for further development, to include obtaining outstanding treatment records and a VA medical opinion. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). For veterans who served in the Republic of Vietnam during the period starting on January 9, 1962, and ending on May 7, 1975, service connection may be granted for specific disabilities associated with exposure to herbicide agents, including early-onset peripheral neuropathy. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). These disabilities will be considered to have been incurred in or aggravated by service despite any lack of evidence of such disease during service. 38 C.F.R. § 3.307(a). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy. The Veteran contends that service connection is warranted for bilateral upper and lower extremity peripheral neuropathy, to include as due to herbicide agent exposure during service while in Vietnam or as secondary to diabetes mellitus, type II. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of bilateral upper and lower extremity peripheral neuropathy, and evidence shows that the Veteran was exposed to herbicide agents, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of bilateral upper extremity peripheral neuropathy began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records, including a January 1967 entrance examination and January 1970 separation examination, are silent for complaints of, diagnosis of, or treatment for peripheral neuropathy. Post-service VA treatment records reflect that in May 2016, the Veteran had undergone an electromyography which revealed idiopathic neuropathy of both lower legs. In December 2016, the Veteran complained of pain in his legs and knees and numbness in his feet. Testing revealed mild arterial insufficiency in the right lower extremity and in January 2017, the Veteran was diagnosed with idiopathic peripheral neuropathy, with symmetrical neuropathy in the bilateral feet and without a diagnosis of diabetes or glucose intolerance. An April 2017 follow-up appointment for peripheral neuropathy reflects a diagnosis of idiopathic peripheral neuropathy possibly due to peripheral vascular disease. During the September 2019 Board hearing, the Veteran testified that his peripheral neuropathy manifested around 2000. He also indicated that he had a diagnosis of diabetes mellitus, type II (DMII). In an August 2020 VA medical opinion, the examiner noted that the Veteran was not service-connected for DMII or peripheral artery disease (PAD). While the Veteran was service-connected for coronary artery disease (CAD), the examiner opined that the Veteran’s PAD and peripheral neuropathy were not due to his service-connected CAD or to herbicide agent exposure. The examiner explained that CAD does not cause peripheral neuropathy and the medical literature did not support herbicide agent exposure as the cause of the Veteran’s PAD; rather, the Veteran’s PAD was likely due to other risk factors, including tobacco use, as the Veteran had only recently stopped smoking in April 2020. The examiner further explained that the toxicity of herbicide agents is attributed primarily to dioxins, and that dioxin toxicity causes cancer, reproductive and developmental problems, damage to the immune system, and hormonal imbalances. The examiner stressed that literature did not show that peripheral neuropathy is caused by dioxins and that the Veteran’s treating VA clinicians had attributed his peripheral neuropathy to his PAD. The examiner additionally noted that the Veteran’s peripheral neuropathy was not presumptively related to herbicide agent exposure. The Board finds the August 2020 examiner’s opinion is probative, because it is based on an accurate medical history, medical expertise, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the Veteran believes his peripheral neuropathy is related to an in-service injury, event, or disease, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, pathology, and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the August 2020 VA medical opinion as discussed above. The Board has also considered whether the Veteran’s peripheral neuropathy may be due to DMII. However, the Veteran is not service-connected for DMII and a recent November 2020 VA examination reflects that the Veteran does not meet the criteria for a diagnosis of DMII. As the Veteran is not service-connected for DMII nor does he have a current diagnosis of DMII, service connection for peripheral neuropathy secondary to DMII is not warranted. While the Veteran’s PAD was identified as a possible source of his peripheral neuropathy, the Veteran is not service-connected for PAD; thus, service connection for peripheral neuropathy on a secondary basis is not warranted. The Board notes that the Veteran’s representative argues that peripheral neuropathy is presumptively related to herbicide agent exposure. 38 C.F.R. § 3.309(e) allows for presumptive service connection for early-onset peripheral neuropathy in veterans exposed to herbicide agents. Early-onset peripheral neuropathy must have manifested to a degree of 10 percent or more within a year after the last date on the Veteran was exposed to an herbicide agent during service. See 38 C.F.R. § 3.307(a)(6)(ii). The Veteran contends that he was diagnosed with peripheral neuropathy in 2000. In December 2019, the Board remanded the claims so that outstanding treatment records could be obtained. In a May 2020 letter, the RO requested the Veteran provide additional information as to his peripheral neuropathy diagnosis and complete a VA Forms 21-4142 and 21-4142a so that those medical records could be obtained. To date, no response has been received and an August 2020 VA Form 27-0820 (Report of General Information) reflects that the Veteran reported he had no additional evidence to submit. However, even if the Board were to presume the Veteran’s peripheral neuropathy manifested in 2000, this is approximately three decades after the Veteran was last exposed to herbicide agents in Vietnam in January 1970, and well outside the presumptive period set forth by 38 C.F.R. § 3.307(a)(6)(ii). In sum, the preponderance of the evidence is against finding that the Veteran’s peripheral neuropathy was incurred in or is otherwise related to service, to include as due to in-service herbicide agent exposure or as secondary to a service-connected disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.