Citation Nr: 21022621 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 17-49 999 DATE: April 16, 2021 ORDER Service connection for peripheral neuropathy of the right lower extremity is denied. Service connection for peripheral neuropathy of the left lower extremity is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that peripheral neuropathy of the right lower extremity began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that peripheral neuropathy of the left lower extremity began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the right lower extremity are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for peripheral neuropathy of the left lower extremity are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1968 to August 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in March 2019 and September 2020 for further development. SERVICE CONNECTION The Veteran contends that his peripheral neuropathy of the right and left lower extremities is related to 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, 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). Applicable law also provides that a Veteran who, during active service, served during a certain time period in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. 38 U.S.C. § 1116; see also Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Regulations further provide, in pertinent part, that if a Veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin’s disease; multiple myeloma; non- Hodgkin’s lymphoma; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); Type II diabetes mellitus, and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). The 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. The Board concludes that, while the Veteran has a current diagnosis of peripheral neuropathy of the right and left lower extremities, and evidence shows that he served in Vietnam during the Vietnam era (and was presumptively exposed to herbicide agents), the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of peripheral neuropathy of the right and left lower extremities began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s Form DD 214 reflects that he served in the Republic of Vietnam during the Vietnam era. Consequently, it is presumed that he was exposed to herbicide agents during such service. The Veteran underwent a VA examination in April 2016. He reported that the neuropathy began in his toes in 2001 and has since moved up to his knees, which makes walking and standing difficult. The VA examiner opined that, “given the Veteran’s known exposure to [herbicide agents] while in service, and knowing that [herbicide agent] exposure is associated with... peripheral neuropathy, it is at least as likely as not that the... lower extremity peripheral neuropathy was incurred in or caused by [herbicide exposure] in Vietnam during service.” In its March 2019 Remand, the Board explained that early-onset peripheral neuropathy is a disease that has been found to be presumptively associated with exposure to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). However, to be eligible for service connection under this basis, early-onset peripheral neuropathy must have manifested to a degree of 10 percent or more within one year after the last date on which the Veteran was exposed to an herbicide agent during active service. See 38 C.F.R. § 3.307 (a)(6)(ii). The Board noted that the April 2016 examiner failed to fully explain how the Veteran’s peripheral neuropathy, which did not manifest until many years after service and is therefore not considered to be “early-onset,” may be associated with exposure to herbicide agents, rather than some other known risk factor. The Board remanded the appeal for an opinion that would clarify the April 2016 examiner’s findings. The Veteran underwent a VA examination in October 2019. He reported numbness in his toes and legs (right greater than left). He stated that he had an EMG/NCT performed in 2008, which showed bilateral peripheral neuropathy. It also revealed right L5 nerve root dysfunction. [The Board notes that this EMG occurred in October 2005, not 2008]. Another EMG performed in 2013 revealed peripheral neuropathy of the bilateral lower extremities, as well as right lower lumbar radiculopathy. The examiner opined that the Veteran’s peripheral neuropathy was less likely than not incurred in or caused by service. He stated that the etiology of the peripheral neuropathy is unclear, but it did not occur during service or within one year of service. The RO obtained another opinion in February 2021. Regarding the left lower extremity neuropathy, the examiner concluded that it is less likely than not that it was incurred in or caused by the Veteran’s in-service exposure to herbicide agents during service. The examiner explained that the Veteran’s neuropathy began in 2005. She noted that the Veteran incurred a back injury in April 1963 (prior to service), and although he did not have back pain during service, he underwent surgical correction of his lumbar spine in 1979-1980 (several years after service). She noted that the Veteran did not note peripheral neuropathy during service, or upon discharge from service, or until 2005. The examiner expressed an identical opinion regarding the Veteran’s right lower extremity. Treatment records show the Veteran was not diagnosed with peripheral neuropathy during service or within one year of service. They reflect that the Veteran was diagnosed with peripheral neuropathy in 2005. Moreover, the Veteran has not contended that peripheral neuropathy began during service or within one year of service. By his own account, it began in 2001. The record contains conflicting medical opinions regarding whether the Veteran’s peripheral neuropathy is due to service, to include due to presumed exposure to herbicide agents. The April 2016 VA examiner opined that the Veteran’s peripheral neuropathy is at least as likely as not due to exposure to herbicide agents. However, this opinion appears to be based on the incorrect belief that herbicide agent exposure is associated with peripheral neuropathy. In fact, only early-onset peripheral neuropathy is presumptively associated with herbicide exposure. Given that the April 2016 examiner’s opinion appears to be based on inaccurate information as to VA regulations, the opinion is less probative that that of the October 2019 and February 2021 VA examiners. Collectively, the October 2019 and February 2021 VA examiners opined that the Veteran’s peripheral neuropathy was less likely than not related to herbicide agent exposure. Both examiners noted that the Veteran’s peripheral neuropathy did not occur for decades after service. Consequently, it does not qualify as early-onset peripheral neuropathy that would qualify for presumptive service connection. Additionally, the examiners noted that the Veteran underwent lumbar back surgery after service in either 1979 or 1980 for radiculopathy. The opinions of the October 2019 and February 2021 VA examiners are probative because they are based on an accurate medical history, and they provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the opinions of the October 2019 and February 2021 VA examiners. The Veteran believes his peripheral neuropathy of the lower extremities is related to an in-service injury, event, or disease. He is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for peripheral neuropathy of the right and left lower extremities must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.