Citation Nr: 21011777 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-02 883 DATE: March 2, 2021 ORDER Entitlement to service connection for a foot condition (claimed as trench foot) is denied. Entitlement to service connection for bilateral lower extremity peripheral neuropathy is denied. FINDING OF FACT 1. The preponderance of the evidence is against finding that the current foot condition began during active service or is otherwise related to an in-service injury or disease. 2. The most probative evidence indicates that the Veteran’s bilateral lower extremity peripheral neuropathy was not shown during service or for many years thereafter, and that the Veteran’s current bilateral lower extremity peripheral neuropathy is not related to service or a service-connected disability. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for a foot condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for bilateral lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from February 1970 to September 1971 with service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. These claims were last before the Board in May 2019 where they were remanded for additional development. 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, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for a foot condition The Veteran contends his claimed foot condition had its onset during service and has continued since. Specifically, he contends that he experienced large blisters on the bottom of both feet from being outside during monsoon season during service. See September 2018 Hearing Transcript. The question for the Board is whether the Veteran has a current disability that began during service or is related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of onychomycosis of the bilateral great toenails and lay evidence indicates that foot blisters occurred during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of onychomycosis of the bilateral great toenails began during service or is otherwise related to an in-service injury, event, or disease. A VA cold injury residuals examination was completed on December 14, 2019. The examiner explained that there was no objective evidence to make a diagnosis specifically for trench foot. Treatment records show the Veteran was diagnosed with onychomycosis of the bilateral great toenails in October 2020. The record contains conflicting medical opinions regarding whether the Veteran’s foot condition is at least as likely as not related to an in-service injury, event, or disease, including his reports of in-service foot blisters. The November 2020 VA examiner opined that it was not. The rationale was that the Veteran’s September 1971 separation examination exhibited normal examinations of the feet and skin, and there were no conditions listed under the summary of defects and diagnoses. The VA examiner further noted: . . . there were no treatment encounters seen for these skin conditions after service. According to the Veteran’s Skin Diseases C&P Examination on 10/29/20, the Veteran’s reported trench foot had resolved. The only diagnosis provided on this exam was onychomycosis of the bilateral great toenails. If the Veteran hypothetically had trench foot in service, trench foot is felt to be caused by circulatory changes in the foot due to prolonged cold and wet conditions as well as pressure, not to a microbe. Thus, a nexus cannot be made between the reported trench foot in 1971 and the (fungal) onychomycosis diagnosed 49 years later. Further, treatment is typically conservative in nature for trench foot, and this would not be expected to be a chronic condition once the feet are removed from the triggering environment. See November 2020 Addendum Opinion. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In a June 2012 letter, private practitioner, Dr. M. opined that the Veteran's current problems with his feet are directly related to his military service in Vietnam. However, this opinion contains no rationale for the conclusion reached. As such, this opinion is afforded little to no probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). To the extent that the Veteran believes that his current disability is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. In this regard, the diagnosis and etiology of foot disabilities are matters that require medical training and expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his current foot disability is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Board finds the opinion of the November 2020 VA examiner to be significantly more probative than the Veteran’s lay assertions. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. In sum, the preponderance of the competent and probative evidence is against a finding that the Veteran has current residuals of trench foot or that his current foot diagnosis had its onset during service or is otherwise related to service. Accordingly, service connection for a foot condition, claimed as trench foot, is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).   2. Entitlement to service connection for bilateral lower extremity peripheral neuropathy. The Veteran contends that his bilateral lower extremity (BLE) peripheral neuropathy is related to his in-service agent orange exposure or to in-service fungal infection of the feet. See September 2018 Hearing Transcript. The Veteran’s military personnel records indicate that he served in Vietnam during the Vietnam War era. Therefore, herbicide agent exposure is conceded. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). A presumption of service connection exists if a veteran is diagnosed with certain enumerated diseases associated with exposure to certain herbicide agents, to include early onset peripheral neuropathy. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. Peripheral neuropathy must become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides to qualify for the presumption of service connection. 38 C.F.R. § 3.307(a)(6)(ii). As an initial matter, the Board notes that a May 2009 report from a neurologist noted the Veteran reporting having numbness, tingling, and burning in his feet for the past six months. He has a current diagnosis of BLE peripheral neuropathy. See January 2020 VA examination. Accordingly, the first criterion for establishing service connection has been met. Since there is no competent evidence that the Veteran was diagnosed with peripheral neuropathy within one year after the date he was last exposed to Agent Orange, or within one year following discharge from service, service connection cannot be established on a presumptive basis. 38 C.F.R. § 3.309(a) and (e). However, service connection may be established with proof of direct causation. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The question for the Board is whether the Veteran’s current disability 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 BLE peripheral neuropathy, and evidence shows that in-service herbicide agent exposure occurred, the preponderance of the evidence weighs against finding that the Veteran’s BLE peripheral neuropathy began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records are silent in regard to complaints or findings of neuropathy or numbness/tingling in the lower extremities. Medical records show the Veteran was not diagnosed with BLE peripheral neuropathy until years following service, with the first complaints of numbness, tingling and burning occurring around 2008, decades after his separation from service. The record contains conflicting medical opinions regarding whether the Veteran’s BLE peripheral neuropathy is at least as likely as not related to an in-service injury, event, or disease. The January 2020 VA examiner opined that it was not. The rationale was that “Agent Orange is capable of causing neuropathy, however this [d]oes not typically come with an extremely delayed onset, indicating that Agent Orange is also an unlikely source for his current issues with neuropathy.” The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. Private practitioner, Dr. M., noted in a June 2012 letter that the Veteran suffers with paresthesia of the feet alternating with pain and a tingling sensation. He provided an opinion that the current problems with the Veteran’s feet are directly related to his military service in Vietnam. However, this opinion contains no rationale for the conclusions provided. As such, this opinion is afforded little to no probative weight. See Stefl, 21 Vet. App at 124. Finally, to the extent that the Veteran believes that his current disability is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. In this regard, the diagnosis and etiology of peripheral neuropathy are matters that require medical training and expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his current neuropathy is not competent medical evidence. See Jandreau, 492 F.3d at 1376-77. The Board finds the opinion of the November 2020 VA examiner to be significantly more probative than the Veteran’s lay assertions. As a final matter, although the Veteran has on several occasions alleged that he suffered from numbness and tingling in his feet during and/or ever since service, the Board does not find such assertion to be credible. In this regard, while seeking treatment in 2009, the Veteran reported such symptoms arising six months previously. Moreover, in a March 2013 statement, the Veteran reported experiencing such symptoms since 2008. Thus, the allegation that he has suffered from neuropathy symptoms during and ever since service is inconsistent with other evidence of record and not credible. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (“The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements”); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). In sum, the preponderance of the evidence is against the Veteran’s claim, and service connection for BLE peripheral neuropathy is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. N. Wilson, 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.