Citation Nr: 21013755 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-24 188A DATE: March 10, 2021 ORDER Service connection for peripheral neuropathy of the left upper extremity is denied. Service connection for peripheral neuropathy of the right upper extremity is denied. Service connection for peripheral neuropathy of the left lower extremity is denied. Service connection for peripheral neuropathy of the right lower extremity is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that peripheral neuropathy of the left upper extremity began during active service, within one year of separation from active service, is otherwise related to an in-service injury or disease, nor is it secondary to service-connected diabetes mellitus. 2. The preponderance of the evidence is against finding that peripheral neuropathy of the right upper extremity began during active service, within one year of separation from active service, is otherwise related to an in-service injury or disease, nor is it secondary to service-connected diabetes mellitus. 3. The preponderance of the evidence is against finding that peripheral neuropathy of the left lower extremity began during active service, within one year of separation from active service, is otherwise related to an in-service injury or disease, nor is it secondary to service-connected diabetes mellitus. 4. The preponderance of the evidence is against finding that peripheral neuropathy of the right lower extremity began during active service, within one year of separation from active service, is otherwise related to an in-service injury or disease, nor is it secondary to service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310. 2. The criteria for service connection for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310. 3. The criteria for service connection for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310. 4. The criteria for service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from March 1967 to March 1970, including service in the Republic of Vietnam (RVN) from April 1968 to October 1968. The case was remanded by the Board in July 2018 for further development of the evidence. This was accomplished and the case has now been returned for further appellate consideration. Service Connection Entitlement to service connection for peripheral neuropathy of the upper and lower bilateral extremities The Veteran contends that service connection should be established for peripheral neuropathy of his extremities. It is asserted that this disease is related to his exposure to herbicide agents while serving in the RVN. Alternatively, he contends the disability is proximately due to or aggravated by his service-connected diabetes mellitus. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of peripheral neuropathy of each of his extremities as evidenced by a July 2008 letter from his private physician who noted that the Veteran was being treated for transverse myelitis resulting in severe proprioceptive sensory loss, painful limb paresthesias, gait imbalance. Diseases of the nervous system are an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. In this regard, a review of the Veteran’s service treatment records (STRs) shows no complaint or manifestation of a neurologic disability for any of the Veteran’s extremities. The initial demonstration of a neurologic disorder in the record dates from a June 2004 report that was associated with records utilized in a disability determination of the Social Security Administration (SSA). This shows that the Veteran had complaints of tingling and burning of the feet. The assessment at that time was bilateral foot neuropathy. A January 2008 private treatment record shows bilateral upper extremity numbness and pain. The impression was probable subacute combined degeneration secondary to vitamin B-12 deficiency; an MRI study was recommended. This showed an area of some focal signal abnormality within the cord at about the C2 level. A follow-up study showed right intervertebral foraminal stenosis at C5-C6 that was probably secondary to degenerative changes. In July 2008, the assessment was myelitis at the C2 level of unknown etiology. Service connection for peripheral neuropathy may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s peripheral neuropathy and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. As noted above, the Veteran has claimed, in part, that his peripheral neuropathy is related to exposure to herbicide agents, including Agent Orange, during service. The Veteran’s DD 214 shows he had service in RVN during the Vietnam era; therefore, he is presumed to have been exposed to Agent Orange and/or other herbicide agents therein. 38 C.F.R. § 3.307(a)(6)(iii). Diseases associated with exposure to herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). These diseases include early onset peripheral neuropathy (with an onset within one year of exposure). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). If there is no presumptive service connection available, direct service connection can be established if the record contains competent medical evidence of a current disease process related to exposure to an herbicide agent while in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, the Veteran does not have a diagnosis of early onset peripheral neuropathy (with an onset within one year of exposure). As was discussed above already, his peripheral neuropathy was not diagnosed until decades after his separation from service. Therefore, the Veteran’s peripheral neuropathy may not be presumed to be related to his in-service exposure to herbicide agents. In September 2019, the Veteran was provided a VA examination to determine whether his peripheral neuropathy was otherwise directly related to his military service. The examiner diagnosed transverse myelitis and opined that this was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner indicated that his opinions were based on a detailed clinical evaluation, which included history and physical examination of the Veteran, as well as a careful review of the available records and current medical literature on the subject matter. The examiner explained for rationale that the Veteran’s transverse myelitis was diagnosed in 2008 and characterized by motor, sensory, and autonomic dysfunctions, including symptoms of numbness, areflexia, and loss of motor skills. The examiner further noted that the causes of transverse myelitis included multiple sclerosis, Parainfectious causes, antecedent bacterial or fungal infection, post vaccination, systemic autoimmune causes, systemic inflammatory causes, or paraneoplastic syndromes; therefore, the transverse myelitis was not caused by herbicidal exposure or trauma to lower extremities. In addition to his in-service exposure to herbicide agents, the Veteran also contends that his peripheral neuropathy is related to his service-connected diabetes mellitus. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. However, the preponderance of the evidence is against finding that the Veteran’s peripheral neuropathy is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). An examination was conducted by VA in December 2017. At that time, the diagnosis was status post cervical transverse myelitis with residual sensory motor symptoms. After evaluation, the examiner opined that the Veteran’s cervical transverse myelitis was not at least as likely as not aggravated beyond its natural progression by a service-connected condition. The rationale was that the Veteran’s service-connected diabetes mellitus was controlled without evidence of secondary conditions. The Veteran’s diabetes was also not demonstrated to be uncontrolled or unmanaged. Therefore, it was the examiner’s conclusion that after a review of the medical evidence, the upper and lower extremity “idiopathic neuropathy” was diagnosed in 2007 as a result of cervical myelitis and was not aggravated beyond its natural progression by his service-connected diabetes mellitus. On VA examination in November 2018, it was noted that the Veteran did not have diabetic peripheral neuropathy. In September 2019, the Veteran was provided another VA examination. As indicated above, the diagnosis was transverse myelitis. The examiner noted the Veteran’s report that this disability was diagnosed in 2008 when he developed generalized numbness all over his body in 2007. He was treated with plasma exchange and Rocephin injections. The Veteran also reported having 85 percent of his fine motor skills; he could not tie his shoes or zip his pants and had difficulty with gait. After examination, the examiner opined that it was less likely than not that the Veteran’s peripheral nerve conditions were proximately due to or the result of the service-connected condition. It was also not at least as likely as not aggravated beyond its natural progression by a service-connected condition. As rationale, the examiner repeated much of the rationale provided for his opinion against a finding of direct service connection (as discussed above) by noting the known causes of transverse myelitis. To address the secondary service connection claim, the examiner added as rationale that all of the Veteran’s symptoms could be explained by his transverse myelitis. His diabetes mellitus, on the other hand, was well controlled with medication. The examiner noted that the Veteran had never been placed on insulin to suggest loss of control with oral medications. In addition, he did not have any other diabetic complications like kidney, foot, or eye conditions that would suggest concurrent peripheral neuropathy. While Veteran believes his disability is related to an in-service injury, event, or disease, including herbicide agents exposure, or to a service-connected disability, he is not competent as a lay person to provide a nexus opinion in this case. The questions involved in this case are medically complex, as they require specialized medical education, knowledge of the interaction between multiple organ systems in the body, and the ability to interpret complicated diagnostic medical testing. 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. In summary, the record does not show that the claimed disability was shown as chronic in service, or that it manifested to a compensable degree within a presumptive period, or was noted in service with attributable continuity of symptomatology. The Veteran’s disability is also not one of those that may be presumed to be related to herbicide agents. Treatment records show the Veteran was not diagnosed with the claimed disability until many years after his separation from service and years outside of any applicable presumptive period. The VA examiners have opined that the Veteran’s transverse myelitis is not at least as likely as not related to an in-service injury, event, or disease, including to herbicide agents exposure or to his service-connected diabetes mellitus. There is no competent evidence of record to the contrary. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.