Citation Nr: 21028080 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-43 914 DATE: May 10, 2021 ORDER Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as due to exposure to herbicidal agents, is denied. FINDING OF FACT The Veteran's bilateral lower extremity neuropathy was not shown in service or for many years thereafter and is not otherwise etiologically related to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as due to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3. 309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to September 1968. This matter returns to the Board of Veterans' Appeals (Board) following the issuance of a May 2019 remand order which directed the Regional Office (RO) to complete additional development. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Furthermore, service connection is warranted for a veteran who has been exposed to a toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307 (a)) for diseases such as chloracne or other acneform diseases consistent with ischemic heart disease, Type 2 diabetes, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson's disease, chloracne and respiratory cancers, and B-cell leukemias. 38 C.F.R. § 3.309 (e). For diseases such as early-onset peripheral neuropathy, 38 C.F.R. § 3.307 (a)(6)(ii) requires that the disease shall have become manifest to a degree of 10 percent or more within a year after the last date of active duty service. To determine whether a Veteran was exposed to herbicide agents, VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975 shall be presumed to have been exposed during such service to certain toxic herbicide agents, with the most common being "Agent Orange," unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). Therefore, if a Veteran served in-country in Vietnam, they are entitled to a presumption of herbicide exposure, and need not prove actual exposure to herbicides. The Veteran served in Vietnam during this time and is presumed to have been exposed to herbicide agents. 1. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as due to exposure to herbicidal agents, The Veteran is seeking service connection for bilateral lower extremity peripheral neuropathy. Specifically, he asserts that his disorder can be linked to claimed exposure to herbicidal agents in service. In the past, the Veteran has also claimed that his bilateral lower extremity peripheral neuropathy was secondary to diabetes mellitus, type II, however, as he is not service connected for diabetes, such a theory will not be considered below. As an initial matter, the Board concedes toxic herbicide exposure, as the Veteran's personnel records reflect that the served in the Republic of Vietnam. However, service connection is not warranted on a presumptive basis, because while the veteran does have a diagnosis of bilateral lower extremity peripheral neuropathy, he does not have evidence which shows that it was early-onset (neuropathy that manifests within one year of herbicide exposure), the type of neuropathy that is presumptively related to toxic herbicides. 38 C.F.R. § 3.307 (a)(6), 3.309(e). Therefore, service connection is not warranted on this basis. However, although service connection is not warranted on a presumptive basis, the Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). Nevertheless, the Board concludes that while the Veteran has a current diagnosis of this disorder, the preponderance of the evidence weighs against finding that it began during service or is otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), (d), 3.304, 3.307, 3.309. In this case, the Veteran's service treatment records are silent for complaints or a diagnosis of bilateral lower extremity neuropathy. Specifically, the Veteran's September 1968 separation examination and separation report of medical history are silent for any signs, symptoms, treatment, or diagnoses related to bilateral lower extremity peripheral neuropathy. The Veteran post-service treatment records do not show treatment for neuropathy until October 2010, approximately 42 years following separation from service. Therefore, continuity of symptoms has not been shown based on the clinical evidence. Although the Veteran is not competent to diagnosis and provide etiological opinions related to his current symptoms/disorders and active service, service connection may nonetheless be established if a relationship is demonstrated by competent evidence, including medical evidence and opinions. To this end, the Veteran was provided with a VA medical examination in February 2020. At the examination, the Veteran reported decreased sensation, numbness, and tingling which he indicated had worsened over the past few years. The examiner opined that there was no basis on which to find that the Veteran's bilateral lower extremity peripheral neuropathy was more likely than not related to active duty service. Concerning the Veteran's exposure to herbicide agents, the examiner noted that his peripheral neuropathy was not shown until decades following service and could not be considered "early-onset". Turning to a potential direct nexus, the examiner noted the large gap in time between the Veteran's service and when he was first diagnosed and the lack of any peripheral neuropathy or related symptoms in the Veteran's service treatment records. The examiner also noted that there was no basis on which to find the Veteran's peripheral neuropathy developed secondarily either due to his diabetes, as the Veteran does not have a definitive diagnosis, or due to his bladder cancer, given the rarity of such a cause. The Board also notes that the Veteran is not service connected for either diabetes or bladder cancer, and as such, service connection via either would not be otherwise available in this instance. The Board notes that the Veteran has not submitted any evidence, including private examinations or opinions, to support his service connection claim. As part of this claim, the Board recognizes the statements from the Veteran, regarding the relationship between his bilateral lower extremity peripheral neuropathy and active service, including as due to herbicide agent exposure. Nevertheless, while he is competent to provide testimony regarding observable symptomatology such as numbness, he is not competent to provide a nexus opinion in this case. The issues are medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran's disorder is found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor