Citation Nr: 21021542 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-43 081 DATE: April 13, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to herbicide agent exposure, is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to herbicide agent exposure, is denied. FINDINGS OF FACT The competent and probative evidence is against finding that right and left peripheral neuropathy of the lower extremities had its onset during active service, was caused by active service, or manifested within one year of the last exposure to herbicides in service. CONCLUSIONS OF LAW 1. The criteria for service connection for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1966 to October 1968, to include service in the Republic of Vietnam. The Veteran also served from May 1974 to February 1975, but his character of discharge during this period was considered to be under dishonorable conditions. See August 1992 Administrative Decision. As a result, entitlement to VA benefits cannot be established based on that particular period of service. See 38 C.F.R. § 3.12(c)(2). The Veteran is in receipt of the Combat Infantryman Badge and the Purple Heart, among other decorations. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a November 2018 decision, the Board denied the issues of entitlement to service connection for neuropathy in the left and right lower extremities. The Veteran appealed the Board’s November 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), which vacated the Board’s November 2018 decision with regard to the claims on appeal and remanded that portion of the appeal. This case was again before the Board in May 2020, at which time the issues currently on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. Service Connection Service connection will be granted for disability resulting from disease or injury incurred or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence establishing three elements: (1) the existence of a present disability; (2) in-service incurrence or aggravation of 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). For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f). VA laws and regulations state that diseases associated with exposure to certain herbicide agents used in support of military operation in Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption of service connection requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). For purposes of this presumption, early-onset peripheral neuropathy is an enumerated disease. 38 U.S.C. § 1116(a)(2); 38 C.R.F. § 3.309(e). Furthermore, effective September 6, 2013, VA amended its regulations regarding presumptive service connection for peripheral neuropathy associated with herbicide exposure. See 78 Fed. Reg. 54763 54766 (September 6, 2013) (final rule) (replacing the terms “acute and subacute” and “transient” peripheral neuropathy with “early-onset” peripheral neuropathy; removing the requirement under the former §§ 3.307(a)(6)(ii) and 3.309(e) that “acute and subacute” peripheral neuropathy appear within weeks or months after exposure; and removing the requirement that the condition resolve within two years of the date of onset in order for the herbicide presumption to apply). To warrant service connection, “early-onset” peripheral neuropathy 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, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). River and Left Lower Extremity Peripheral Neuropathy The Veteran generally asserts that his bilateral lower extremity peripheral neuropathy is related to his period of active service, to include in-service herbicide exposure. The Veteran’s service records indicate that he served in Vietnam. As such, exposure to certain herbicide agents has been conceded. Early-onset peripheral neuropathy is a disease listed under section 3.309(e). However, 38 C.F.R. § 3.307(a)(6)(ii) requires that it “shall 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, naval, or air service.” The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). The Veteran has not asserted that he experienced a continuity of symptoms since his active service and has not otherwise indicated that a relevant chronic disease manifested or was diagnosed within one year of separation from service (or one year of exposure). The Veteran has provided no evidence supporting a link between his active service and his peripheral neuropathy beyond his assertion that it is related to herbicide agent exposure. He has provided no competent evidence suggesting a link between his claimed peripheral neuropathy and service. To that end, there is no evidence that early-onset peripheral neuropathy was manifest to a degree consistent with 38 C.F.R. § 3.307(a)(6)(ii) within one year of the last exposure to herbicide agents. Conversely, the Veteran’s service treatment records are unremarkable for any complaints of, treatment for, or diagnosis of peripheral neuropathy or any other neurological disorder during active service. Moreover, the Veteran’s September 1968 separation examination clinical evaluation of the lower extremities and neurological system were normal. Further, the corresponding Report of Medical History shows that the Veteran denied having experienced neuritis, foot trouble, paralysis, or any other lower extremity abnormality. A review of the Veteran’s post-service treatment records shows that evidence of feet dumbness was noted at a May 2011 VA examination. In a March 2014 VA progress note, the Veteran reported right foot pain for the past week and a history of burning and numbness to bilateral feet. In a subsequent March 2014 VA progress note, the examiner noted that the Veteran had peripheral neuropathy with hypesthesia affecting the plantar surfaces of both feet. An October 2015 progress note indicates that the Veteran experienced several years of neuropathy related to back problems. In a July 2016 progress note, the Veteran reported the onset of his burning sensation to be “about five or six years” ago. The description for onset of pain was noted as neuropathy. In January 2021, Veteran was afforded a VA examination. At that time, the examiner opined that the Veteran's peripheral neuropathy of the right and left lower extremities was less likely than not related to his military service, to include his presumed herbicide exposure. In support of this conclusion, the examiner acknowledged that the Veteran made vague lay statements of onset of peripheral neuropathy symptoms in 1968. However, the examiner noted that the first diagnosis of peripheral neuropathy was not until 2012. The examiner indicated that in 2012 the Veteran did experience known diabetes, thyroid disorder, or alcoholism. Rather, the evidence shows that the Veteran was diagnosed with diabetes diagnosis in 2017, but the examiner indicated that was not thought to have been related to the Veteran’s reported peripheral neuropathy. The examiner found there was no medical evidence of a diagnosis, chronic symptoms, complaints, or treatments of peripheral neuropathy of the lower extremities until several decades following the Veteran’s separation from service. The examiner also referred to the National Academy of Sciences which noted that “there is inadequate or insufficient evidence of an association between exposure to the chemicals of interest and delayed or persistent peripheral neuropathy.” In this case, the Veteran has a current diagnosis of neuropathy in the bilateral lower extremities as confirmed by March 2014 VA progress note and January 2021 VA examination. 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. As noted above, in the July 2016 VA progress note, the Veteran stated that the burning sensation in his lower extremities began approximately “five or six years” ago. This is more than 40 years outside of the applicable presumptive period for chronic disabilities. Concerning the Veteran’s claim that his neuropathy is due to his presumed herbicide exposure, the Board notes that under 38 C.F.R. § 3.309(e), only early onset peripheral neuropathy is an enumerated condition. The January 2021 VA examiner explicitly noted a diagnosis of peripheral neuropathy, and not early-onset peripheral neuropathy. The January 2021 VA examiner stated that the medical evidence of record did not support an onset of peripheral neuropathy within one year of the Veteran’s 1968 separation from active service. Thus, presumptive service connection for peripheral neuropathy of the bilateral lower extremities based on in-service herbicide exposure is not warranted. 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 of the bilateral lower extremities, and an in-service injury, event or disease. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The January 2021 VA examiner specifically opined that the Veteran’s peripheral neuropathy is not at least as likely as not related to his active service, to include in-service herbicide exposure. The Board finds that the January 2021 VA medical opinion is adequate because the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. The Board finds this opinion highly probative as the examiner reviewed the claims file, interviewed the Veteran, and provided an opinion supported by a clear rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no contrary opinion of record. The Board has also considered the statements of the Veteran asserting that his right and left lower extremity peripheral neuropathy are related to his military service. However, to the extent that the Veteran is competent to opine on this matter, the Board finds that the specific, reasoned opinion of the January 2021 VA examiner is of greater probative weight than the Veteran’s lay assertions in this regard. The examiner reviewed the claims file and the Veteran’s own reported history, and he has training, knowledge, and expertise on which he relied to form his opinion. The examiner also provided a rationale for the conclusion reached. To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s clinical evaluation around the time of his separation from service where no lower extremity, or neurological abnormalities were found. The Board finds separation clinical evaluation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. Moreover, the Board notes that at a July 2016 VA medical appointment, the Veteran reported that he began experiencing neurological problems several decades after service. While the Veteran is competent to report on certain medical issues, he is not competent to link upper or lower extremity peripheral neuropathy, which had its onset more than three decades following his separation from service, to his active service. An opinion of that nature requires medical expertise that is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In this case, the Board finds the most probative evidence weighs against the claim. The first complaints and objective evidence of a peripheral neuropathy did occur until more than three decades after service. The probative evidence shows that the Veteran’s diagnosed lower extremity peripheral neuropathy had its onset several years after service, and there is no competent evidence to link the Veteran’s lower extremity peripheral neuropathy with an incident of service, to include in-service herbicide exposure. Further, the January 2021 VA examiner opined against the claim and provided sufficient rationale. (Continued on the next page)   Accordingly, the Board finds that a preponderance of the evidence is against the claims and entitlement to service connection for right and left lower extremity peripheral neuropathy is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). CHRISTOPHER J. O’DONNELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. M. Donahue Boushehri, 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.