Citation Nr: 21022769 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-28 072 DATE: April 19, 2021 ORDER Entitlement to service connection for a neurological disability of the lower extremities is denied. FINDINGS OF FACT 1. The Veteran served in the Korean DMZ from April 1971 to February 1972 and is presumed to have been exposed to Agent Orange in service. 2. Early-onset peripheral neuropathy was not manifest within a year after the last date on which the Veteran was exposed to an herbicide agent during active service. 3. A chronic neurological disorder of the lower extremities was not shown in service or within one year of active service; and, the preponderance of the evidence fails to establish that a present neurological disorder of the lower extremities is etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a neurological disorder of the lower extremities have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1970 to February 1972, which included approximately nine months of service in Korea. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision. Previously, the Board remanded the matter for an examination to determine the nature and etiology of any neurological disability of the lower extremities by obtaining all outstanding VA and relevant private treatment records and scheduling the Veteran for an examination. The matter has returned for adjudication. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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). Certain chronic diseases, including organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309 (a). Peripheral neuropathy, as an organic disease of the nervous system, is a chronic disease for which service incurrence may be established based upon a continuity of symptomatology. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, a veteran who had active military service between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period, is presumed to have been exposed to an herbicide agent during such service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). If such exposure occurred, the veteran is entitled to a presumption of service connection for certain disorders. 38 C.F.R. § 3.309(e). Peripheral neuropathy is one of several diseases/disabilities presumed to be related to exposure to herbicide agents; however, to qualify for the presumption the disease must have manifested to a compensable degree within one year of separation. 38 C.F.R. § 3.307(a)(6)(ii). Entitlement to service connection for a neurological disorder of the lower extremities. The Veteran contends that his polyneuropathy is related to exposure to herbicide agents in the DMZ zone in Korea. He has confirmed service in the DMZ and is presumed exposed to herbicide agents, including Agent Orange. The Veteran’s neuropathy was first diagnosed in June 2012, many decades after service. Accordingly, the Board finds that the weight of the evidence is against a finding that the Veteran’s neuropathy had its initial onset in service, to a compensable degree within one year since his exposure, or that he has experienced recurrent symptoms of neuropathy since service. Service connection based on presumption or continuity of symptomatology is not warranted. However, the Veteran may nevertheless still be awarded service connection for an herbicide-related disease if the evidence of record demonstrates such a correlation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during service). A June 2012 VA nerve conduction study definitively diagnosed polyneuropathy. However, at that time the study found that the type and severity of the Veteran’s neuropathy were undiscernible due to co-morbidities. In a July 2014 Form 9, the Veteran stated his doctor confirmed his neuropathy was directly caused by Agent Orange citing a medical report at VA Loma Linda. A July 2014 statement from the Loma Linda neurology clinic, a provider stated they had seen the Veteran for his polyneuropathy and lumbar degenerative disease, that reversible and common causes of polyneuropathy were absent on laboratory testing, one quarter of patients have no cause identified for their polyneuropathy, and that there was no test the provider was aware of that would determine whether neuropathy is due to Agent Orange exposure. September 2012 nursing notes show the Veteran was treated for a fall, noting neuropathy in both feet due to Agent Orange. July 2014 hospital records also show the Veteran was admitted for a fall and given a secondary diagnosis of “polyneuropathy from Agent Orange exposure.” It is unclear from these records, however, how the nurse and physician reached the conclusion that the Veteran’s polyneuropathy was the result of his Agent Orange exposure. The Veteran’s other VA medical treatment records more commonly refer to the Veteran’s polyneuropathy as having an unknown etiology. Because the September 2012 nursing notes and July 2014 hospital records lack a rationale for their findings, the Board affords them low probative weight on the question of nexus. In accordance with the Board’s May 2018 remand, the Veteran was afforded a September 2020 VA examination to assess the nature and etiology of the Veteran’s claimed polyneuropathy. In the September 2020 exam, the examiner opined the Veteran’s polyneuropathy is less likely than not related to the Veteran’s service. The examiner noted the Veteran’s service ended in 1972 which is too long for the neuropathy to be attributed to Agent Orange and the examiner reiterated the notes of the neurologist from July 2014 stating there is no way of ascertaining a neuropathy to be related to exposure to Agent Orange. In further support of the opinion that the Veteran’s neuropathy is less likely than not related to his service, the examiner noted the Veteran’s neuropathy may have etiology other than exposure to Agent Orange four decades ago. Specifically, the examiner noted the Veteran’s non service-connected lumbar spine conditions, especially the severe spinal stenosis and multi-level degenerative disease as contributing to the Veteran’s neuropathy. The September 2020 VA opinion is found to be persuasive and to have been based upon adequate rationale. The examiner is shown to have reviewed of the evidence of record and to have adequately considered the credible lay statements and reported symptom manifestation history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board finds that the preponderance of the evidence is against finding that the Veteran’s polyneuropathy is related to his active service. Service connection for polyneuropathy is denied. M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bush, Michael N. The Board’s decision in 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.