Citation Nr: 21014222 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-27 234 DATE: March 11, 2021 ORDER Service connection for bilateral peripheral neuropathy of the lower extremities is denied. VETERAN’S CONTENTIONS The Veteran contends that he developed bilateral peripheral neuropathy of the lower extremities as a result of exposure to herbicide agents and other chemicals during his active service. FINDING OF FACT The Veteran's bilateral peripheral neuropathy of the lower extremities was not shown in service or for many years thereafter, and is not otherwise related to active duty service, to include herbicide/chemical exposure. CONCLUSION OF LAW The criteria for service connection for bilateral peripheral neuropathy of the lower extremities are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.33(a), 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to May 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference in January 2017. The transcript of the hearing has been associated with the claims file. This claim was previously before the Board at which times it was remanded for further development. Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities Generally, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted through the application of statutory presumptions for chronic conditions. See 38 U.S.C. §§ 1101 (3), 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a). "Other organic diseases of the nervous system," which may include peripheral neuropathy, are classified as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the claimant's separation from service. 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1336-38. The application of these presumptions operates to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a current disability, which must be found before entitlement to service connection can be granted. If a Veteran was exposed to certain herbicide agents during service, then certain listed diseases, including early-onset peripheral neuropathy, are presumptively service connected absent affirmative evidence to the contrary. 38 U.S.C. §§ 1113, 1116(a)(1), (a)(2); 38 C.F.R. §§ 3.307(d), 3.309(e). The foregoing statutory and regulatory provisions do not establish a presumption of exposure to herbicide agents based on service in Thailand. However, current VA policy indicates that herbicides, including Agent Orange, were used at certain times and places at some military bases in Thailand during the Vietnam Era. As a result, special consideration of herbicide exposure on a factual basis for veterans whose duties placed them on or near the perimeters of Thai military bases during the Vietnam era is required. Specifically, if a Veteran served as an Air Force security policeman, security patrol dog handler, or member of the security police squadron, or was otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure should be acknowledged. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107(b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). Here, in addressing the criteria of a current disability, post-service treatment records document a current diagnosis of peripheral neuropathy, bilateral lower extremities. See April 2012 Peripheral Nerves Conditions VA Examination Report. See May 2018 Peripheral Nerves Conditions VA Examination Report. In addressing in-service incurrence, the Board acknowledges that the Veteran’s military personnel records are not associated with the claims file. However, the Board finds that the Veteran is not prejudiced because herbicide exposure will be conceded in this decision. Further, the Veteran testified during the January 2017 Board hearing that he did not seek treatment in service for bilateral peripheral neuropathy of the lower extremities. Therefore, the Board finds that any military personnel records would not be relevant to the remaining criterion for the Veteran’s claim for service connection for bilateral peripheral neuropathy of the lower extremities, a relationship between the peripheral neuropathy and his military service. The Veteran’s service treatment records (STRs) are void of treatment or diagnosis of bilateral peripheral neuropathy of the lower extremities. As indicated above, herbicide exposure is conceded. The Veteran is competent to report the approximate geographical locations of his service on the base in Thailand and the Board finds his assertions that his in-service duties placed him in close proximity of the perimeter of the base, credible. The Veteran's military service records reflect that he served as a Communications Center Specialist at the Korat Royal Thai Air Force Base (RTAFB). The Veteran stated in an April 2012 VA Form 21-4138 Statement in Support of Claim that his living quarters were located near the perimeter of the Korat RTAFB. The Veteran also testified during the January 2017 Board hearing that he was engulfed in a chemical mist while in the shower and that the mist also saturated his bedding and pillow covers. In support of his statements and testimony, the Veteran submitted an article which included aerial photographs showing the foliage around the Korat RTAFB perimeter, photographs of open-air barracks, and diagrams of the base with notations of each specific building, including location of barracks. In addressing nexus, to the extent that the Veteran has stated that he has bilateral peripheral neuropathy of the lower extremities attributable to service, the Board finds that he is competent to report on his symptoms and that of which he has personal knowledge, but he is not competent to provide an opinion as to the etiology of his disability because such a question is not answerable by the application of knowledge within the realm of a lay person. See Layno, 6 Vet. App. at 469-70; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board finds that the Veteran is not competent to relate his bilateral peripheral neuropathy of the lower extremities to his service or to any incident therein. The evidence of record otherwise includes a May 2018 VA opinion concluding that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted the Veteran’s contentions regarding bilateral peripheral neuropathy starting soon after leaving the military but highlighted that the Veteran’s medical records documented symptoms of numbness in the feet starting sometime around 2006. In concluding that the Veteran’s peripheral neuropathy was less likely than not related to service, the examiner considered it significant that a March 2012 Physical Medicine Rehab Diagnostic Study documented a mildly abnormal EMG which can occur naturally with age; a March 2012 Deployment and Environmental Health Assessment indicated that the Veteran did not have any signs/symptoms that were suggestive of presumptive diseases associated with AO exposure; and an April 2013 Neurology Consultation indicated progressive worsening numbness in feet/legs up to thighs for six years. Lastly, the examiner noted that there was no record of diabetes mellitus. The evidence of record also includes a September 2019 VA opinion concluding that it was less likely than not that the Veteran’s bilateral lower extremity peripheral neuropathy was caused by, related to, or had its onset during military service, within one year of military discharge, or was otherwise related to military service, including exposure to chemicals. In finding that the Veteran’s service records were absent evidence supporting an onset of peripheral neuropathy in service, the examiner noted that the Veteran sustained several injuries to the feet during his active duty service. The examiner explained, however, that all injuries were sustained while playing sports, and none of the signs, symptoms, or examination findings were consistent with those of even an occult peripheral neuropathy. Rather, they were all consistent with minor musculoskeletal injuries, which had all resolved without residuals by the time of the Veteran’s separation examination in March 1970. The only foot condition found at his separation examination was a corn on the left foot; a dermatological condition caused by ill-fitting shoes which had no nexus to his current peripheral neuropathy. The examiner considered it significant that the Veteran first sought medical care for symptoms consistent with peripheral neuropathy in 2008, when he was evaluated by a vascular surgeon. No evidence was found for a vascular etiology of his complaints, however, and the vascular surgeon correctly determined that the symptoms were consistent with peripheral neuropathy. The examiner explained that it was important that the Veteran reported at that time that symptoms had been present for about a year (thus 2007), contradicting his statements otherwise attesting to an onset around the time of his military service. The examiner considered it persuasive that the Veteran had repeatedly been seen over the years and had consistently stated that symptoms began at about the same time period (approximately 2007). The examiner acknowledged that at one visit in 2013, the Veteran stated that symptoms had been present for 5 years (which would be 2008) and wondered if they might have been present for 15 years. The examiner explained that this would still put the onset of symptoms in 1998, which is 30 years after the Veteran returned from Thailand. The examiner emphasized that there were numerous treatment notes in which the Veteran reported the onset of symptoms in the latter part of the 2000s, and explained that the weight of the medical literature supported that the natural progression of peripheral neuropathy related to toxic exposure was for all symptoms to be present and at their worst severity initially at the time of exposure, with symptoms rapidly declining in severity after exposure was terminated. The examiner noted in particular that this had been well documented with peripheral neuropathy due to chemical exposure (including herbicide agents such as Agent Orange) with the onset of signs and symptoms occurring shortly after exposure, which is why peripheral neuropathy must be diagnosed within a year of exposure to be considered an Agent Orange presumptive condition. In agreeing with the negative nexus opinions previously provided by neurological specialists and other providers, the examiner determined that the Veteran’s contentions regarding the clinical onset of his peripheral neuropathy were not consistent with the observed natural progression of his peripheral neuropathy. Finally, the examiner observed that the Veteran was diagnosed with type II diabetes mellitus in 2019. The examiner acknowledged that although impaired fasting glucose can lead to the development of peripheral neuropathy before the onset of overt diabetes mellitus, the weight of the medical literature was not supportive of a finding that the Veteran would have developed neuropathy in roughly 2007, but would not have had the onset of diabetes until 12 years later, particularly since no behavior modifications due to impaired fasting glucose were ever undertaken. Thus, the Veteran’s peripheral neuropathy could not be considered to be due to his newly diagnosed type II diabetes mellitus. Instead, the examiner explained, there were numerous possible etiologies of the Veteran’s peripheral neuropathy, and even if work up was undertaken to find the cause of his particular peripheral neuropathy, there was a low probability that such workup would with any level of probability identify the likely etiology. In support of this conclusion, the examiner explained that the weight of the medical literature supported that 70 percent of cases of peripheral neuropathy never have an etiology determined. The Board finds the May 2018 and September 2019 VA opinions to be highly probative. The opinions were based on examination of the Veteran, a review of the claims file and relevant facts, and the examiners provided detailed rationales for their negative conclusions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Significantly, there are no competent opinions to the contrary. The Board acknowledges that early onset peripheral neuropathy is a disease associated with exposure to certain herbicide agents that will be presumed to have been incurred in service even in the absence of evidence of that disease during service. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.307(d)(1), 3.309(e). However, for service connection to be granted for early onset peripheral neuropathy, it must have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Based on the Veteran's testimony and dates of service, his last presumed exposure to herbicide agents was in the late 1960s or early 1970s. As indicated above, there are numerous treatment notes in which the Veteran reported the onset of symptoms in the latter part of the 2000s. Therefore, a preponderance of the evidence is against a finding that service connection on a presumptive basis for early onset neuropathy as due to herbicide agent exposure is warranted. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Additionally, without any competent evidence that the Veteran's bilateral peripheral neuropathy is related to service, direct service connection is not warranted. The Board finds that the Veteran's bilateral peripheral neuropathy of the lower extremities did not have its clinical onset in service, or within one year of his discharge from active service, and that it is not otherwise related to a period of active service; therefore, service connection is not warranted. There is no doubt to be resolved in this case. 38 U.S.C. § 5107. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, 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.