Citation Nr: 21024085 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-28 090 DATE: April 22, 2021 ORDER Entitlement to service connection for a neurological condition, to include peripheral neuropathy but distinct from diabetic polyneuropathy, to further include as due to exposure to herbicide agents, is denied. FINDING OF FACT The preponderance of the evidence of record is against a finding that the Veteran has a neurological condition, to include peripheral neuropathy but distinct from diabetic polyneuropathy, that was incurred in or is otherwise attributable to service, to further include as due to conceded toxic herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for a neurological condition, to include peripheral neuropathy but distinct from diabetic polyneuropathy, have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1966 to October 1968, to include service in the Republic of Vietnam during the Vietnam War era. This matter was last before the Board in January 2020, when it was remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of a March 2020 supplemental statement of the case, the claim was returned to the Board for its adjudication. Service Connection for Peripheral Neuropathy The Board notes that following certification of the appeal in April 2020, the Veteran in October 2020 submitted a new claim seeking service connection for diabetes mellitus, type II as well as diabetic polyneuropathy as secondary to the diabetes mellitus, type II. In a March 2021 rating decision, the AOJ granted service connection for right and left upper extremity diabetic polyneuropathy as well as right and left lower extremity diabetic polyneuropathy impacting both the femoral and sciatic nerves. This would appear to satisfy the Veteran’s current claim before the Board, as the claim has already been certified. However, the Board finds that it has an obligation to review the record and determine whether the Veteran is entitled to a separate rating for neurological impairment of the upper and/or lower extremities that is not already encompassed within the service-connected diabetic polyneuropathy. To that end, entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).   For certain chronic diseases, including organic diseases of the nervous system, such as peripheral neuropathy, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. Furthermore, certain diseases associated with in-service Agent Orange exposure, to include early-onset peripheral neuropathy, are presumed to be service connected if the disease is manifested to a compensable degree within a specified time period. 38 C.F.R. §§ 3.307, 3.309. If a Veteran was exposed to an herbicide agent, including Agent Orange, during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service. The Veteran’s service records show that he served in the Republic of Vietnam during the Vietnam Era. The claims file also contains a copy of an internal VA memorandum dated in February 2020 wherein the Veteran’s exposure to toxic herbicide agents was conceded due to his history of service within the Republic of Vietnam during the Vietnam War era; therefore, his exposure to toxic herbicides is presumed. See 38 U.S.C. §§ 1116, 1154. Furthermore, although early-onset peripheral neuropathy is listed as a disease for which presumptive service-connected may be warranted, VA regulations establish that peripheral neuropathy with a clear alternative etiology are not subject to the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309. Notwithstanding the foregoing presumptions, a veteran is not precluded from establishing service connection due to exposure to herbicides with proof of direct causation. Combee v. Brown, 38 F.3d 1039, 1042 (Fed. Cir. 1994). Accordingly, the first question for the Board is whether the Veteran has a neurological disorder distinct from his service-connected diabetic polyneuropathy that can be characterized as early-onset peripheral neuropathy and for which presumptive service connection can be granted. The remaining question is whether any such separate neurological disorder was incurred in or is otherwise attributable to service, to include as due to the Veteran’s conceded exposure to toxic herbicide agents in service. A review of service treatment records does not reflect that the Veteran complained of or received any treatment for neurological symptomatology that may be categorized as peripheral neuropathy. No such symptomatology was noted on the Veteran’s May 1968 separation examination or the corresponding May 1968 Report of Medical History. The Veteran himself has never contended that he experienced any symptom of peripheral neuropathy or any other neurological condition while in service. Therefore, service connection for peripheral neuropathy on a direct basis is denied. 38 C.F.R. § 3.303(a). A review of VA medical records show that the Veteran was diagnosed with peripheral neuropathy in May 2013 after an evaluation by a neurologist for complaints of dizziness and imbalance. Prior to that, in a May 2012 neurology consultation, the Veteran reported that he had only been experiencing balance issues for the past three months. Thereafter, in a May 2015 outpatient note, the Veteran’s treating physician stated that the cause of the peripheral neuropathy was unclear, as the Veteran was not diabetic. In a March 2017 neurology progress note the treating physician stated that the peripheral neuropathy was likely due to Agent Orange exposure. However, only two months later in May 2017 the Veteran’s treating physician conceded that the etiology of the condition was still unknown. There is no objective medical documentation of the Veteran having experienced neurological symptomatology that could be characterized as peripheral neuropathy prior to 2012. Accordingly, the Board finds that the provisions of establishing service connection for continuity of symptomatology under 38 C.F.R. § 3.303(b) are not applicable in this case. To that end, the Board notes that the Veteran did not seek treatment for peripheral neuropathy for over 40 years after his discharge from service. Thus, the chronic presumption cannot apply because the diagnosis occurred outside the applicable presumptive period.  38 U.S.C. § 1112, 38 C.F.R. §§ 3.307, 3.309.  Pursuant to the Board’s January 2020 remand instructions, the Veteran was afforded a March 2020 VA peripheral nerves examination, during which he reported that he had been experiencing balance and gait issues ever since leaving service in 1968 or 1969. At the time of the examination, he endorsed experiencing numbness in both hands, pain in the neck and right shoulder that radiated down his arm and into his fingers, and numbness of all of the fingers of both hands with impaired dexterity and tendency to drop things. The examiner also observed that the Veteran’s gait was mildly unsteady, and that he had a history of hypertension and diabetes. Regarding the proper diagnosis to account for the Veteran’s symptomatology, the March 2020 examiner found that the symptoms were most consistent with a polyneuropathy, absent ankle jerks, and impaired vibratory sensation, that was mild in nature and was unlikely to have caused his balance issues. The examiner determined that the neurological symptomatology was unlikely to be attributable to the Veteran’s exposure to toxic herbicides in service, as it arose many years after the Veteran’s discharge. Instead, the examiner found it more likely that the condition was attributable to the Veteran’s diabetes. As for the likely cause of the hand numbness and stiffness, the examiner acknowledged that it was unclear. However, it was probably due to a combination of carpal tunnel syndrome, cervical radiculopathy, cervical myelopathy, and tendinopathy. Upon consideration of the evidence of record, the Board does not find that the Veteran has a diagnosable neurological condition distinct from his service-connected diabetic polyneuropathy which is otherwise attributable to his service, to include as due to his exposure to toxic herbicide agents while serving in the Republic of Vietnam. To begin, the Board finds that the preponderance of the evidence is against a determination that the Veteran’s peripheral neuropathy may be considered as early onset in nature. The record instead shows that the peripheral neuropathy arose later in life and has a clear etiology. Specifically, the Board relies on the highly probative findings of the March 2020 VA examiner, who thoroughly reviewed the claims file and supported his negative opinion by reference to medical literature regarding the diagnosis of various neuropathies. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the claims file does contain VA medical records wherein the Veteran’s treating physicians speculated that his peripheral neuropathy may be related to his exposure to toxic herbicide agents, none of those physicians set forth a definitive opinion with a rationale. As such, the Board finds their statements to be far less persuasive then the findings of the March 2020 VA examiner’s opinion. Accordingly, the evidence does not support that the Veteran’s peripheral neuropathy is early onset in nature. Thus, the condition is not subject to the presumptive provisions for entitlement to service connection as due to toxic herbicide agents. 38 C.F.R. § 3.307(a)(6), (d). The Veteran may still be entitled to service connection for peripheral neuropathy if all of the evidence establishes that the condition is otherwise attributable to service, to include as due to exposure to toxic herbicide agents. 38 C.F.R. § 3.303(d). Here, however, while the Veteran contends that he began experiencing neurological symptomatology soon after his discharge from service, there is no objective medical evidence of complaints or a diagnosis of a neurological condition, to include peripheral neuropathy, until 2012, over 40 years after his discharge. Furthermore, the Veteran repeatedly reported around the time that he first sought treatment for the symptoms that they began only a few months prior. This contradicts his later contention that the symptoms had been occurring ever since his discharge from service. The Board acknowledges that the Veteran is competent to report on his medical history. However, there is no evidence in the record which indicates that the Veteran is competent through expertise or knowledge to conclude that he had a diagnosable neurological condition at any point prior to when he was formally diagnosed with peripheral neuropathy in 2013. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). The Board also relies on the highly probative March 2020 VA examiner’s opinion, who found it far more likely that the Veteran’s neurological symptomatology was characteristic of a polyneuropathy that was attributable to his diabetes mellitus, type II. Indeed, the March 2020 VA examiner’s opinion is further buoyed by the fact that the Veteran is currently service connected for neurological symptomatology that is considered to be attributable to his diabetes mellitus, type II. Moreover, the record does not contain any positive supporting evidence other than a few isolated and speculative comments by the Veteran’s treating physicians that his neurological symptomatology may be attributable to his exposure to toxic herbicide agents in service. These statements, unsupported by a rationale as they are, are far outweighed by the March 2020 VA examiner’s determination that it was less likely than not that the neurological symptomatology was attributable to exposure to toxic herbicide agents. Sklar v. Brown, 5 Vet. App. 140 (1993). Thus, the Board concludes that the preponderance of the evidence weighs against a finding that the Veteran has a neurological condition characterized as peripheral neuropathy that is distinct from his service-connected diabetic polyneuropathy and which is otherwise attributable to service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection under 38 C.F.R. § 3.303(d) is denied, and, as such, the Veteran’s claim for service connection in total must be denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Collins, 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.