Citation Nr: 21022571 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 14-28 838 DATE: April 16, 2021 ORDER Service connection for left lower extremity neuropathy is denied. Service connection for right lower extremity neuropathy is denied. FINDINGS OF FACT 1. Peripheral neuropathy of the left lower extremity did not manifest in service or within one year after service and is not otherwise related to the Veteran’s period of active duty, to include herbicide agent exposure. 2. Peripheral neuropathy of the right lower extremity did not manifest in service or within one year after service and is not otherwise related to the Veteran’s period of active duty, to include herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the left lower extremity has not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for peripheral neuropathy of the right lower extremity has not been met. 38 U.S.C. §§ 1101,1110, 1112, 1113, 1131, 1137, 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 September 1966 to July 1968. This matter is on appeal from an April 2012 rating decision. In November 2016, the Board remanded the claims so the Veteran could be afforded a VA examination, as the duty to do so had been triggered by the Board’s finding that he was exposed to herbicide agents. The Board also directed the Agency of Original Jurisdiction (AOJ) to obtain additional treatment records. In its 2019 remand, the Board determined that the March 2017 VA examination was inadequate because it had failed to consider the Veteran’s lay statements regarding onset of symptoms and the gap in treatment since leaving service. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Pursuant to the November 2016 remand, additional treatment records were added to his claims file. Pursuant to the December 2019 Board remand, VA obtained medical opinions in January 2020, September 2020, and October 2020. The Board finds that the October 2020 opinion is adequate because the VA examiner reviewed the evidence of record and considered the Veteran’s actual history and statements. The examiner rendered opinions with reasoned medical explanations and analysis. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Therefore, the Board finds that the Veteran has been provided an adequate medical opinion in conjunction with his claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, the VA examiner addressed the Veteran’s lay statements regarding in-service symptoms, onset, and delay in seeking medical care. Additionally, in response to the November 2016 Board remand directive regarding obtaining outstanding treatment records, VA associated with the claims file VA treatment records and asked the Veteran to identify other treatment providers and to provide authorizations for VA to obtain those. The Veteran submitted an authorization for VA obtain the treatment records, however, it was unsigned. The Veteran did not respond to VA’s notice of this and request to resubmit the document. For the foregoing reasons, there has been substantial compliance with the remand directives. Stegall, 11 Vet. App. 268. 1. Service connection for left lower extremity neuropathy. 2. Service connection for right lower extremity neuropathy. The Veteran seeks service connection for his right and left lower extremity neuropathy. He asserts that it is due to his exposure to herbicide agents in service. He further asserts that after an incident in which he was drenched with herbicide agents, he felt a tingling in his toes. Thereafter, according to the Veteran, he experienced tingling since service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board finds that the records in file establish element (1) in this case (evidence of neuropathy during the appeal period). VA has presumed the Veteran’s exposure to herbicide agents due to his service in the Republic of Vietnam. The second element of a service connection claim is met. The question remaining before the Board is whether there is a link between the Veteran’s peripheral neuropathy and his period of service. If a veteran was exposed to an “herbicide agent," such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases, including early-onset peripheral neuropathy, which manifests to a compensable degree within one year after the last date on which the Veteran was exposed to an herbicide agent, will be service connected even if there is no in-service record of the disease. 38 C.F.R. § 3.307 (a)(6), (d), 3.309(e). Notwithstanding the foregoing presumptions, a Veteran is not precluded from establishing service connection due to exposure to herbicide with proof of direct causation. Combee v. Brown 38 F. 3d 1039, 1042 (Fed. Cir. 1994). With respect to whether the Veteran’s neuropathy manifested in service, none of the Veteran’s service treatment records do not note complaints about or diagnoses of lower level extremity neuropathy. The Report of Medical Examination at separation, dated July 1968, was normal. It notes a complaint about leg cramps but also a denial of foot problems and no diagnosis of neuropathy. With respect to whether the Veteran’s neuropathy manifested within one year after the last date on which he was exposed to an herbicide agent, the Veteran’s statement that he noticed neuropathy symptoms shortly after discharge is inconsistent with a later 2006 treatment record, which noted neuropathy symptoms first were noticed “two years ago” (in 2004). As discussed below, a VA examiner has explained why the Veteran’s neuropathy did not begin shortly after discharge. Based on the Veteran’s conflicting statements, the Board finds the contemporaneous medical record statement more credible and persuasive. Because the Veteran’s statements are conflicting, his statement many years after service that he noticed tingling in his toes in service is not credible. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the Veteran). Additionally, his assertion has been investigated by competent medical examination and found not supportable. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In his appeal letter to the Board, dated 2014, Veteran stated that he was “soaked with Agent Orange” while flying a Huey Helicopter during 2 missions during his service in Vietnam and experienced “aching and tingling sensations” shortly thereafter. However, there is no report of such symptoms in any of his service medical examinations. He said that he did not report these symptoms at the time or seek medical assistance because he “wanted to go home” and feared that doing so would only delay his discharge. He stated his neuropathy became worse in 1995, 1996, 1998 and 1999. The Veteran had multiple VA examinations and opinions after filing this claim (July 2014, March 2017, January 2020, and September 2020). His medical treatment records in file are dated from 2002, long after his service in Vietnam and none of them reflect a definitive diagnosis of neuropathy due to herbicide exposure or note a history of such. The Board acknowledges the Veteran’s lay statements as to onset and treatment. While he is competent to describe symptoms of foot numbness or tingling in his toes, he is not competent to provide a diagnosis or the cause of his symptoms or nexus opinion regarding this issue. Those conclusions are medically complex and require extensive training and knowledge of the nervous system and interpretation of complicated diagnostic medical testing. Therefore, they are outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such determinations. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the opinions of the VA examiners’ opinions. Moreover, while the Board considers the Veteran's statements important and relevant, it finds greater weight must be given to his written, contemporaneous service records, VA examination reports, and VA treatment records, which conflict with the Veteran's claims of early onset neuropathy symptoms while in service. These medical care providers, medical tests, and VA examiners’ combined opinions are probative because they are based on an extensive, accurate medical treatment history and provide an explanation that contains clear conclusions and supporting data. Thus, the Board concludes that no neuropathy manifested during service or up to a year after discharge. The remaining question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, on a direct service connection theory. Combee, 38 F.3d at 1042. In this case, there are two possible in-service incurrences, exposure to herbicide agents, and the Veteran’s report of tingling in his feet in service. In this case, the preponderance of evidence weighs against finding that his bilateral neuropathy began during service. The preponderance of evidence also weighs against a finding that his neuropathy is related to an in-service injury, event or disease, specifically exposure to herbicide agents. In its December 2019 remand, the Board found that the March 2017 VA examination report was inadequate. Therefore it is assigned no probative weight and will not be addressed further. Negative opinions were subsequently obtained in January 2020 and September 2020. The examiners provided negative opinions without considering the Veteran’s lay statements, as required by the Board’s remand instructions. Because the examiners did not address the lay contentions specified in the Board’s remand instructions, these negative opinions are inadequate and will not be afforded probative weight or discussed further. The October 2020 VA examiner opined that it is less likely than not that the Veteran's peripheral neuropathy had its nexus in service or is due to or incurred in exposures, including Agent Orange. The examiner noted that there was no evidence of neuropathy arising during service or present at separation, and that the earliest documented onset was in 2004. The examiner acknowledged the Veteran’s report that there were symptoms since service with an acute exacerbation in 2004. However, the examiner found that it is … unlikely a neurologic condition arising in 1968 would not have become problematic enough to seek care in the interim. Neuropathies tend to worsen over time. 2006 records noted tingling for two years. Follow-up exam[ination] for diabetic peripheral neuropathy 11/21/2012 noted a 15 year history. These are clearly discrepant from an onset near service. Given the documented history of diagnosis occurring in 2005, with a report of a two year history, it is more likely than not that the Veteran’s peripheral neuropathy had its onset in or around 2003/2004. The examiner also stated that “Agent Orange does not cause remote peripheral neuropathy.” The examiner reasoned that any neuropathy arising from an exposure to Agent Orange or other environmental agent would be anticipated to manifest at the time of such exposure or more proximate to it, and not 30 years later. The examiner also noted that other causes, such as diabetic peripheral neuropathy or an idiopathic etiology, more likely apply. There are many treatment records in file noting the Veteran’s continued complaints of neuropathy. However, none of those medical care providers linked his symptoms to his herbicide or Agent Orange exposure. Instead, they discussed other possible medical conditions as causes of neuropathy (prediabetes, insulin or glucose intolerance, plantar fasciitis, anxiety). November 2005 private treatment records show a diagnosis of mild polyneuropathy with an unclear etiology. A December 2005 private record from Dr. W. W., a neurologist, noted that the Veteran had “insidious onset” of symptoms about a year ago. In February 2006, Dr. W. W. stated that the exact etiology of the Veteran’s polyneuropathy was unknown, and “[t]he only two identifiable factors included are relatively high arsenic level, which has improved over time in addition to his polyclonal gammopathy. As to which one may be the culprit is unclear.” In November 2006, Dr. B. H., a neurologist, stated that the Veteran’s bilateral sole paresthesias and numbness were likely secondary to compression, and that the symptoms seemed to occur with extended periods of weight on his feet. The only September 2009 VA treatment records note that Veteran has had a “prickly feeling in feet since 2000.” As discussed above, the Board has found the Veteran’s reports of symptoms in service not to be credible as they relate to the onset and continued symptomatology of neuropathy prior to 2000. The private neurologists’ discussion of risk factors and etiologies of the Veteran’s peripheral neuropathy are probative evidence against the claim. The October 2020 opinion is highly persuasive. They account for the Veteran’s lay statements and provide extensive rationale. The Board finds especially probative the examiner’s explanation as to why neuropathy manifesting in service would have advanced to the point where the Veteran would have needed medical treatment earlier than 2003 or 2004. The examiner also explained why Agent Orange does not cause remote peripheral neuropathy. In January 2019, the Veteran submitted a published article titled “My Vietnam Experience,” about life in Vietnam and details of drinking water hazards and Agent Orange contamination posed to troops. However, this article does not prove that herbicide exposure caused this Veteran’s neuropathy. It is too general and did not pertain to this Veteran’s specific circumstances. Libertine v. Brown, 9 Vet. App. 521 (1996). It is also not a medical text. Additionally, it was not accompanied by the opinion of a medical professional. Sacks v. West, 11 Vet. App. 314 (1998). For these reasons, the Board finds it has no probative value in this case. The Veteran also submitted citations to Board decisions in the cases of other Veterans and included the text of one. Prior Board decisions are binding only on the specific cases decided, and the decisions cited have no precedential value in the instant case. 38 C.F.R. § 20.1303. They also address different facts than those of this Veteran and therefore do not support his claim. Lastly, the medical evidence suggests that the Veteran’s peripheral neuropathy could be diabetic. Diabetes is a disability that is presumptively associated with exposure to herbicide agents. 38 C.F.R. §§ 3.307, 3.309(e). However, the Veteran does not have diabetes and therefore the AOJ does not need to develop a claim for service connection for diabetes. DeLisio v. Shinseki, 25. Vet. App. 45, 55 (2011). The VA treatment records contain evidence that the Veteran does not have diabetes. Instead, he is prediabetic. In October 2011, he was informed that he was at risk for diabetes. A January 2012 VA neurology report noted, “[b]ilateral numbness in a man with NO history of diabetes. Unclear etiology. Some paraproteinemia and heavy metal issues noticed in OSH record work up.” March 2012 records noted prediabetes and “peripheral polyneuropathy most like[ly] secondary to prediabetes.” An October 2012 record noted “[e]levated hemoglobin A1C without diabetes.” In April 2013, his A1C was normal and a VA treatment record noted, “[a]t this point he is not considered diabetic because he has not had significant diabetes based on the numbers. His A1c peak was 6.2 and not consistent with diabetes. He did have one blood sugar in 201,1133 fasting but has not had 2 separate blood sugar levels fasting over 126. He does not have a history of being treated for diabetes prior to establishing care with this provider in the VA.” In January 2014 it was noted that the provider “[w]ill not give [a] diagnosis of diabetes… glucose has been normal since 2011.” An October 2015 VA treatment record stated there was “no evidence of diabetes.” In October 2016 there was a specific finding that the Veteran did not have diabetes. In November 2018, a VA treatment record noted, “[y]our A1C shows no evidence of diabetes.” In November 2019, it was noted that his A1C was 6.0, and it was explained that “[y]our A1c was elevated showing prediabetes which means you have increased risk to develop diabetes in the future.” A February 2020 VA treatment record again stated that he did not have diabetes. Because the record shows that he does not have diabetes, the AOJ did not have a duty to address service connection for diabetes. For the reasons stated above, the Board finds the preponderance of the evidence is against the Veteran’s claim for service connection for peripheral neuropathy of left and right lower extremities. There is no reasonable doubt to be resolved, and the claim for service connection is denied. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Fiorillo, Kathleen M., 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.