Citation Nr: 21021028 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 17-38 295 DATE: April 9, 2021 ORDER Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to exposure to Agent Orange, is denied. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to exposure to Agent Orange, is denied. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to exposure to Agent Orange, is denied. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to exposure to Agent Orange, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's left upper extremity peripheral neuropathy is causally or etiologically related to an in-service event, injury or disease, to include exposure to Agent Orange, or that it manifested within one year of discharge from service. 2. The preponderance of the evidence is against a finding that the Veteran’s right upper extremity peripheral neuropathy is causally or etiologically related to an in-service event, injury or disease, to include exposure to Agent Orange, or that it manifested within one year of discharge from service. 3. The preponderance of the evidence is against a finding that the Veteran’s left lower extremity peripheral neuropathy is causally or etiologically related to an in-service event, injury or disease, to include exposure to Agent Orange, or that it manifested within one year of discharge from service. 4. The preponderance of the evidence is against a finding that the Veteran’s right lower extremity peripheral neuropathy is causally or etiologically related to an in-service event, injury or disease, to include exposure to Agent Orange, or that it manifested within one year of discharge from service. CONCLUSIONS OF LAW 1. The criteria for service connection for the left upper extremity, to include as due to exposure to Agent Orange, has not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for the right upper extremity, to include as due to exposure to Agent Orange, has not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for the left lower extremity, to include as due to exposure to Agent Orange, has not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for the right lower extremity, to include as due to exposure to Agent Orange, has not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1965 to January 1969. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded in November 2019. Service Connection A veteran is entitled to VA disability compensation if the facts establish that a disability resulted from disease or injury incurred in the line of duty or for aggravation of a preexisting injury in active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish a right to compensation for a disability, a veteran must show (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307(a)(6)(iii). Service connection based on herbicide agent exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A September 1966 military personnel record confirms the Veteran served in Vietnam. Even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In evaluating service connection claims, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Bilateral upper and lower extremity peripheral neuropathy The Veteran filed his claim for service connection for bilateral upper and lower extremity peripheral neuropathy in September 2010 and was denied in an April 2011 rating decision. Thereafter, the Veteran did not file a timely notice of disagreement to such decision and the decision became final. The Veteran thereafter filed a claim to reopen his service connection claims in 2015 and his claims for service connection were reopened in a June 2015 Board decision and remanded for further development. The Veteran has claimed that his peripheral neuropathy disabilities are related to service and also that they are specifically due to his Agent Orange exposure in service. The Veteran was examined in January 2011, at which point he reported symptoms of numbness to fingertips and both lower extremities. He reported an increased severity of symptoms in his feet, with pins and needles sensation. See January 2011 VA Examination Report. The Board notes that service connection is not warranted on a presumptive basis, as the evidence does not show that the peripheral neuropathy of the upper and lower extremities manifested to a degree of 10 percent or more within a year of the last date of exposure to herbicides or within one year following discharge from service. In addition, there is no indication that the Veteran has been diagnosed with acute, sub-acute or early-onset peripheral neuropathy. Thus, service connection under the provisions of 38 C.F.R. § 3.309(a) and (e) is not warranted. The claim will therefore be analyzed on the basis of direct service connection. Combee v. Brown, 34 F.3d 1039, 1042(Fed. Cir. 1994). Service treatment records are negative for complaints, diagnoses or treatment for peripheral neuropathy of any of the upper or lower extremities. The Veteran’s January 1969 separation examination was noted as normal with no observation of any arm or leg condition abnormalities. See January 1969 separation examination. Next, considering the third Shedden element, the weight of the evidence is against a finding that the Veteran's bilateral upper and lower extremity peripheral neuropathies were etiologically related to his active duty service. In support of this claim, the Veteran has submitted multiple articles and statements to support his contention. In January 2011 the Veteran was afforded a VA examination, in which the examiner found that service connection is not warranted on a presumptive basis because the evidence does not show that his neuropathy of the upper and lower extremities manifested to a degree of 10 percent or more within a year of the last date of exposure to herbicides, or within one year following discharge. As the Veteran had submitted evidence addressing the relationship between peripheral neuropathy and herbicide agent exposure, the Board requested a new VA examination in a November 2019 Board remand. Subsequently, in April 2020 the Veteran was afforded a VA examination for his peripheral nerves. The examiner referenced 1988 treatment; however, this appears to be related to another Veteran’s claim. There is no indication that such reference affected their conclusion or rationale. The examiner noted records from Aurora Advanced Healthcare that show complaints of numbness and tingling in both feet in February 2009, at the time which was listed as suspect cold injury. The examiner noted that in August 2010, the private clinician indicated this condition was less likely peripheral neuropathy but noted questionable spinal stenosis. The examiner noted that in September 2010, after undergoing an electromyography, a private clinician noted that the condition was demyelinating polyneuropathy, which was possible hereditary in nature. The April 2020 nerve examiner found that there was no new evidence of peripheral neuropathy manifesting to a compensable degree within one year after his last exposure to herbicides and referenced the Veteran’s and Agent Orange: Update 11 (2018), which notably, indicates that “on the basis of the lack of new evidence to date, the committee conclude[d] that there is inadequate or insufficient evidence to determine whether there is an association between exposure to the [Chemical of Interests (herbicide agents sprayed in Vietnam) and delayed-onset chronic neuropathy.” Therefore, the examiner opined that the claimed condition was less likely than not incurred in or caused by the Veteran’s in-service exposure to herbicides. The Board acknowledges statements by the Veteran that the Veteran's disabilities were caused by exposure to herbicides. However, as laypersons, their statements are not competent evidence regarding the etiology of his symptoms of numbness. In this regard, the question of diagnosis involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Jandreau, 492 F.3d 1372, 1376-77. The Board also acknowledges the Veteran’s August 2020 statement that he did not report his symptoms until symptoms started impacting his life and that medical professionals have told him that his peripheral neuropathy is related to Agent Orange exposure. Although the Veteran is competent to report his symptomology, as well as information relayed to him by physicians, the Veteran indicated that the medical professionals declined to offer written opinions attesting to a relationship between the Veteran’s peripheral neuropathy in the upper and lower extremities and exposure to Agent Orange during service. Further, during the January 2011 VA examination, the Veteran reported numbness in the lower bilateral extremities with an onset of approximately 5 years prior to the examination (2006). Thus, the Board finds that the Veteran’s statements are outweighed by the medical opinions and evidence of record, and such records indicate an onset of symptoms many years after service. Finally, the Board notes that the Veteran has submitted articles in support of the claim. “See Agent Orange Exposure and Prevalence of Self-Reported Diseases in Korean Vietnam Veterans.”; see also Air Force Study Suggests Agent Orange, Diabetes Link.” The Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1). However, the articles submitted by the Veteran are of a general nature and do not contain information or analysis specific to the Veteran's case. Additionally, the Court has held that medical evidence, which is speculative, general, or inconclusive in nature cannot support a claim. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The Veteran also referred to prior Board decisions in which Veterans were granted service connection for peripheral neuropathy based on herbicide exposure. However, the law is quite clear that Board decisions are not precedential and that claims for VA benefits are to be decided on the individual facts of each case. See 38 C.F.R. § 20.1303; McDowell v. Shinseki, 23 Vet. App. 207, 228 (2009). The Board decision in this claim, as in every other claim, rests on the specific facts of the case at hand. With regard to a nexus, the Board finds the April 2020 examiner’s opinion to be most probative. The April 2020 assessment of the VA examiners indicated that she reviewed the claims file. Additionally, the VA examiner also provided a detailed rationale and cited to a medical publication when determining that the Veteran’s claimed condition was less likely than not due to his herbicide exposure in service. The April 2020 opinion is highly probative as it reflects the VA examiner’s specialized knowledge, training, and experience as to the etiology of the Veteran’s peripheral neuropathy disabilities as well as consideration of all relevant lay and medical evidence of record. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). In sum, upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection for the bilateral peripheral neuropathy of the upper and lower extremities, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. Sarah Campbell Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nadia Kamal, 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.