Citation Nr: 21025650 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-00 569 DATE: April 28, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to in-service herbicide exposure, is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicides, including Agent Orange. 2. The Veteran’s peripheral neuropathy of the right lower extremity did not manifest during active service, is not presumed to be caused by exposure to herbicides, and has not been found otherwise related to or etiologically linked to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy of the right lower extremity are not met. 38 U.S.C. §§ 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active service with the United States Army from December 1963 to December 1967, including service in the Republic of Vietnam from May 1965 to May 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran’s claim in August 2018, September 2019, August 2020, and January 2021 for further development. The Board finds that there has been substantial compliance with the Board remands. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran contends his right lower extremity peripheral neuropathy is related to his exposure to herbicide agents and had its onset shortly after his service in Vietnam. In the alternative, the Veteran contends that he had an injury after a parachute jump at Fort Bragg, which caused his right lower extremity peripheral neuropathy. Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for specified chronic diseases when shown in service with subsequent manifestations at a later date, however remote, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.307. As the Veteran, in this case, served in the Republic of Vietnam during the Vietnam era, exposure to herbicide agent has been conceded and presumptive service connection due to right lower extremity peripheral neuropathy has been considered. See 38 C.F.R. §§ 3.303, 3.307. For presumptive service connection for diseases associated with exposure to certain herbicide agents, the disease must manifest to a degree of 10 percent or more within any time after service, but for chloracne or other acneform diseases consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy, the disease has to manifest 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). However, even if peripheral neuropathy does not meet the definition of “early-onset” peripheral neuropathy, a veteran can still establish service connection for such disability by showing it is directly related to service without the benefit of the presumptive provisions of 38 C.F.R.§3.309(e). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Initially, the Board recognizes that clinical records and VA examiners have confirmed the presence of the disability claimed. A November 2019 VA examiner confirmed the Veteran has bilateral upper and lower extremity polyneuropathy, although this decision is limited to establishment of service connection for right lower extremity neuropathy. The evidence shows the presence of a current disability; thus, the first element for service connection is met. The question becomes whether the Veteran’s right lower extremity neuropathy is causally connected to his active service, to include his conceded in-service herbicide exposure. A review of the Veteran’s service treatment records reveals that he had a normal examination upon his discharge in October 1967. Additionally, the Veteran did not report issues related to his lower extremities at discharge. There is no evidence of a diagnosis or treatment for symptoms related to right lower extremity neuropathy during the Veteran’s active service. Further, there is no evidence within the claims file showing treatment or a diagnosis any time within the first year following the Veteran’s active service, as well as no indication of a diagnosis of early-onset peripheral neuropathy at any time, to include within one year of the Veteran’s May 1966 return from the Republic of Vietnam. As such, there is no basis for a presumptive award of service connection under See 38 C.F.R. § 3.307(a)(6)(ii). In November 2014, February 2015 and again in August 2015, the Veteran reported that he had tingling in his legs and the feeling of his legs falling asleep shortly after service. He stated that he was young and never went to have the symptoms checked out until much later. As for treatment, the Veteran had private medical treatment in April 1999 that indicated that he suffered from mild polyneuropathy, which was idiopathic, and may be related to his previous exposure to toxins. The Veteran’s medical history stated that he had exposure to chemicals in an on-the-job basis and did spend some time in southeast Asia during hostilities around 1960 to 1970, for about a year at the end of the war. An August 2000 private record shows the clinician’s suggestion that the Veteran’s polyneuropathy was likely due to toxin exposure either on his job or possibly in Vietnam. The record shows the Veteran was treated for some time with private clinicians and then transferred his treatment to VA in February 2003 and has been treated since. While presumptive service connection is not warranted, the Board has also considered direct service-connection, but the evidence does not show a causal relationship (“nexus”) between the Veteran’s present right sided lower extremity peripheral neuropathy and an in-service event, injury, or disease. As noted above, the Veteran reported a hard parachute landing in service and believes his current neuropathy may be related. In October 2020, a VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in service injury, events, or illness. The examiner acknowledged the Veteran’s lay statements, specifically, the Veteran statements that his symptoms started in the military. However, the examiner found that there was no evidence to support the Veteran’s statements. Additionally, the Veteran had a hiatus of 30 years without reporting neuropathy symptoms, which the examiner felt would typically be a condition causing uncomfortable symptoms, not easily ignored by patients, especially for 30 years. The October 2020 VA examiner also stated that a large portion of neuropathies have an unknown etiology, and 24 percent of all peripheral neuropathies were attributed to drugs or toxins. The examiner explained that the further out in time from when the exposure occurred the less likely it is that peripheral neuropathy will develop. The examiner also stated that most symptoms have an insidious onset or occur very shortly after exposure with few exceptions, some which were listed. As to the trauma caused by a parachute jump, the October 2020 examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in service injury, event, or illness. The examiner stated that trauma caused by parachute jumps would result in radiculopathy and not peripheral neuropathy. The examiner stated that a review of the current medical literature does not support a relationship between parachute jumps and peripheral neuropathy. In March 2021, another VA examiner provided an opinion. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided a detailed rationale and referenced the opinion provided in October 2020. In particular, the examiner found that there was no evidence of early onset polyneuropathy to support the Veteran’s claims of Agent Orange exposure induced polyneuropathy. The examiner explained that there was no evidence of lower extremity polyneuropathy while in service. In particular, the separation examination was negative for neuritis or other indications of lower extremity neuropathy. The examiner acknowledged that the Veteran was claiming exposure to agent orange as a cause of his neuropathy or hard parachute landings. However, the examiner explained that there was no developed evidence of early-onset polyneuropathy until in or around 1999. The examiner opined that it was less likely than not that the Veteran’s poly neuropathy has its nexus in service or is due to events in service including possible Agent Orange exposure. As to the parachute jumps, any condition arising for parachute landings would have been shown at the time of the jump or certainly by the time of separation. The examiner explained that the types of injuries due to hard landings are orthopedic injuries to particular joints or bones or confirmed injuries to the spine. The type of neuropathy caused by spinal injury would be due to impingement of lumbar nerves. There is no evidence of a back condition due to service and there has been no diagnosis of radiculopathy. The EMG the Veteran had confirmed a diagnosis of polyneuropathy and does not diagnose radiculopathy. Therefore, the examiner found that it was less likely than not that the Veteran’s lower extremity polyneuropathy had its nexus in service or is due to events in service including hard parachute landing and Agent Orange exposure. The Board recognizes the private treatment records noted above, which suggest a potential correlation between the Veteran’s neuropathy and his herbicide exposure in Vietnam. These clinical indications were without any stated rationale and were also generalized suggestions listing various possible causes for the neuropathy. The Board finds the VA examiners opinions, which include well-explained rationales and noted reliance on medical literature, to hold greater probative value. Based upon the foregoing, the Board finds that the preponderance of the evidence of record weighs against the establishment of a nexus between the Veteran’s peripheral neuropathy of the right lower extremity and active duty service. The Board recognizes that the Veteran might sincerely believe that his right sided lower extremity peripheral neuropathy began in Vietnam or shortly thereafter. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on his symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although the Veteran is competent to report his symptoms, he does not possess the medical expertise required to provide a competent opinion concerning the etiology of the disability at issue. In this regard, the diagnosis and etiology of peripheral neuropathy of the right lower extremity are matters not capable of lay observation and require medical expertise to determine. Thus, the Board finds the opinions of the VA examiners to be significantly more probative than the Veteran’s lay assertions. Given the extensive time between active duty service and the diagnosis of peripheral neuropathy of the right lower extremity, as well as considering all the evidence of record, the Board finds that the preponderance of the evidence of record weighs against service-connection for peripheral neuropathy, right lower extremity. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to service connection for peripheral neuropathy, right lower extremity must be denied. A. ADAMSON Actin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.