Citation Nr: 21011991 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-34 585 DATE: March 3, 2021 ORDER Entitlement to service connection for a nerve condition of the right lower extremity, to include as due to diabetes mellitus or exposure to herbicide agents, is denied. Entitlement to service connection for a nerve condition of the left lower extremity, to include as due to diabetes mellitus or exposure to herbicide agents, is denied. FINDING OF FACT The Veteran’s bilateral lower extremity nerve conditions are not due to diabetes mellitus or to exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral nerve conditions of the lower extremities, to include as due to diabetes mellitus or exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to May 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of June 2014 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut. Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in May 2015. The RO issued a statement of the case (SOC) in August 2015 and the Veteran’s timely appeal to the Board followed in September 2015. The Veteran initially requested a hearing in his appeal to the Board, but the record reflects that he later withdrew this request. See September 2015 VA Form 9 at 2; see also October 2015 Correspondence at 2. Accordingly, no hearing before the undersigned Veterans Law Judge (VLJ) was scheduled. Generally, service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). 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). Additionally, disabilities which are “proximately due to or the result of a service-connected disease or injury” are also service connected. 38 C.F.R. § 3.310(a). “When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.” Id. Finally, certain conditions, including peripheral neuropathy, may be service-connected on a presumptive basis when a veteran has been exposed to certain herbicide agents. See 38 C.F.R. § 3.307(a) (providing basis for presumption); see also 38 C.F.R. § 3.309(e) (listing qualifying conditions). However, to qualify for service connection on the basis of this presumption, peripheral neuropathy must have manifested to a compensable degree within one year of the last date of exposure to such herbicide agents. See 38 C.F.R. § 3.307(a)(6)(ii). As an initial matter, the Board notes that the Veteran served within the Republic of Vietnam during his active-duty service. See June 2013 Discharge Certificate (reflecting receipt of the Vietnam Service Medal and Vietnam Campaign Medal). The Veteran is therefore presumed as a matter of law to have been exposed to such herbicide agents, and the Board has found no evidence in the record to rebut this presumption. See 38 C.F.R. § 3.307(a)(6)(iii) (providing that exposure is presumed where a veteran served “in the Republic of Vietnam… [between] January 9, 1962 [and] May 7, 1975”). The Veteran asserts that he has bilateral peripheral neuropathy as a result of this exposure to herbicide agents. See June 2013 Correspondence. However, the Board notes that while the medical evidence of record corroborates the Veteran’s assertion of bilateral lower extremity symptoms, it does not establish that those symptoms are at least as likely as not due to peripheral neuropathy. Instead, the Veteran’s private medical records support the inference that his symptoms are more likely than not due to a non-service-connected spine condition. See June 2013 VA Form 21-4138 (asserting that “I have experienced numbness of both legs and feet, coldness of both feet… and have been told by my family physician that I have neuropathy, and am scheduled to undergo tests for same”); see also April 2014 Medical Treatment Records at 35 (providing treatment note of May 2013 observing that “[the Veteran’s] symptoms are consistent with peripheral neuropathy[,] [we’ll] get bilateral EMG studies and decide about further management after the results are back”); cf. id. at 28 (providing July 2013 test results finding a “[normal] study” and “[no] sign of neuropathy, myopathy or radiculopathy”); see also id. (noting that “[with] his bilateral lower extremity symptoms that are suggestive of claudication we are going to image his lumbar spine to make sure that he does not in fact have spinal stenosis”); see also id. at 26-27 (providing additional testing of July 2013, finding “borderline central spinal stenosis [at L3-4]” and “impingement upon exiting bilateral nerve roots”). The Veteran is not service-connected for any spine condition, nor has he submitted a claim for entitlement to service connection for such a condition. See January 2019 Rating Codesheet. The Board has found no additional evidence in the record to rebut the private medical tests’ findings that the Veteran’s symptoms are due to a spine condition rather than to peripheral neuropathy. The Board notes that the Veteran has submitted medical articles evaluating the possibility that neuropathy due to diabetes mellitus may manifest prior to the point at which diabetes mellitus may otherwise be clinically diagnosed. See May 2015 Correspondence at 5-16. Diabetes mellitus is also a condition which may be presumptively service-connected on the basis of herbicide exposure. See 38 C.F.R. § 3.309(e). However, these articles do not satisfy the Veteran’s burden of proof as to direct or secondary service connection, under which he must show that it is at least as likely as not that his bilateral lower extremity nerve conditions are due either to his active-duty service or to a service-connected disability. 38 C.F.R. §§ 3.303, 3.310. Neither the Veteran’s VA medical records nor his private treatment records reflect a diagnosis of diabetes mellitus. See April 2014 Medical Treatment Records; see also January 2019 Medical Treatment Records. “In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Finally, as noted above, the regulations for presumptive service connection require that peripheral neuropathy manifest to a compensable degree within one year of the last date of exposure to herbicide agents. See 38 C.F.R. § 3.307(a)(6)(ii). The Veteran has not asserted, nor does the evidence of record otherwise reflect, that his bilateral lower extremity symptoms manifested prior to 2013. See July 2015 Agent Orange Peripheral Neuropathy Review Check List. The Board notes the Veteran’s assertion that “the VA is simply ‘behind the times’ regarding dioxin exposure results… I also feel that these articles directly link my case of peripheral neuropathy to exposure to dioxin since the VA recognizes same.” See September 2015 VA Form 9. However, the Board is bound by VA regulations and has no authority to modify them on policy grounds. See 38 U.S.C. § 7104(c). Additionally, as discussed above, the competent evidence of record supports the conclusion that the Veteran in fact does not have peripheral neuropathy, but rather nerve conditions attributable to a non-service connected spine condition. The Veteran is competent to report bilateral lower extremity symptoms perceptible to lay observation, but is not competent to differentiate between possible causes because such a determination requires medical expertise. “Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board[.]” Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Accordingly, the Board concludes that the third Shedden factor has not been met and that the assignment of service connection for nerve conditions of the bilateral lower extremities is not warranted under direct or secondary bases. 38 C.F.R. §§ 3.303, 3.310. Because the Veteran has not demonstrated that it is at least as likely as not that his symptoms result from a condition eligible for presumptive service connection on the basis of herbicide exposure, the assignment of service connection on such a basis is also not warranted. 38 C.F.R. § 3.307, 3.309. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence of record is against the Veteran’s claim. 38 U.S.C. § 5107. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.