Citation Nr: 21029022 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-40 378 DATE: May 12, 2021 ORDER 1. As new and material evidence has been received, the previously denied claim for service connection for peripheral neuropathy of the bilateral feet is reopened. 2. Entitlement to service connection for peripheral neuropathy of the bilateral feet, to include as due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. In an unappealed March 2013 rating decision, the Regional office (RO) denied service connection for peripheral neuropathy of the bilateral feet based on a finding that there was no in-service disease or injury. 2. Evidence submitted subsequent to the March 2013 rating decision that denied service connection for peripheral neuropathy of the bilateral feet is not cumulative or redundant of evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. 3. The preponderance of the evidence is against a finding that the Veteran was exposed to an herbicide agent while on active duty. 4. Peripheral neuropathy of the bilateral feet did not manifest in service or within one year after service and is not otherwise related to service, to include herbicide agent exposure. CONCLUSIONS OF LAW 1. The March 2013 rating decision denying service connection for peripheral neuropathy of the bilateral feet is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim for service connection for peripheral neuropathy of the bilateral feet on the basis of new and material evidence have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for peripheral neuropathy of the bilateral feet, to include as due to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1951 to July 1954 and from August 1957 to May 1979. In May 2017, the Board remanded the issue of whether new and material evidence had been submitted to reopen the claim for service connection for peripheral neuropathy of the bilateral feet for the agency of original jurisdiction (AOJ) to issue a Statement of the Case (SOC). The AOJ issued an SOC in July 2017. The Veteran then perfected an appeal as to this issue and requested a hearing before the Board. See VA Form 9, Appeal to the Board, received on July 31, 2017. In March 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. The appellant was present at the hearing but did not testify. In August 2018, the Board was notified the Veteran had died. That same month, the Board dismissed the appeal involving whether new and material evidence had been submitted to reopen the claim for service connection for peripheral neuropathy of the bilateral feet based upon the death of the Veteran during the pendency of the claim. In October 2018, VA received a VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant, from the appellant. The appellant has been substituted for the Veteran in this appeal. In a May 2019 letter, the Board informed the appellant and the representative that the appeal had been docketed. In a May 2019 submission to VA, the appellant's representative acknowledged receipt of that letter and wrote, "A hearing was requested on March 7, 2018. Please schedule this hearing as soon as possible." The video conference hearing held in this appeal was on March 7, 2018. Thus, the hearing request within the substantive appeal had been completed on that date. If the appellant is seeking another hearing in this appeal, the Board denies the request, as the hearing was already held following the December 2017 remand, and the issue has not been remanded for additional development since the hearing was held. Since the March 2018 Board hearing, there has been additional evidence added to the record in connection with the appellant's claim for service connection for cause of the Veteran's death. However, these records are cumulative of evidence that was in the file at the time of the Veteran's death. New and Material Evidence If a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. Only evidence presented since the last final denial on any basis (whether by the Board or RO, and whether upon the merits of the case or upon a previous adjudication that no new and material evidence had been presented) will be evaluated in the context of the entire record. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Regardless of the RO's actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7105 to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. 1. New and material evidence to reopen the previously-denied claim for service connection for peripheral neuropathy of the bilateral feet. For background purposes, in July 1979, the Veteran filed a claim for service connection for left toe numbness. In September 1980, the RO denied the claim based on a finding that left toe numbness was not a chronic disability and no cause could be found. The Veteran did not perfect the appeal, and the September 1980 rating decision is final. In August 2011, the Veteran filed a claim for service connection for peripheral neuropathy of the bilateral feet. In March 2013, the RO denied the claim based on a finding that there was no evidence of an in-service disease or injury, to include herbicide exposure and, implicit in that finding, is that there was no evidence of a nexus between the current disability and service. The RO notified the Veteran of this decision in a March 2013 letter, which included his appellate rights. The Veteran did not appeal the decision, nor did he submit new and material evidence within one year of the March 2013 notification letter. Thus, this decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In September 2015, the Veteran filed an application to reopen the claim for service connection for peripheral neuropathy of the bilateral feet. The Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in March 2013. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. For example, the appellant submitted a medical opinion, wherein Dr. Frank A. Graf concluded that evidence shows a nexus between peripheral neuropathy of the bilateral feet and service. This evidence is new because it has not been previously submitted. This evidence is also material because it pertains to the basis for the prior denial, that is, that the evidence did not show a nexus between the post-service diagnosis and service. This evidence raises a reasonable possibility of substantiating the claim, as there was no competent evidence of a nexus between peripheral neuropathy of the bilateral feet and service at the time of the March 2013 rating decision. For these reasons, the Board finds that new and material evidence has been received to reopen the claim for service connection for peripheral neuropathy of the bilateral feet. See 38 C.F.R. § 3.156(a). As the RO reopened the claim, provided the Veteran with a VA examination, and adjudicated the claim on the merits within the October 2015 rating decision, the Board may also consider the claim on the merits. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran 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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. If a veteran was exposed to an "herbicide agent," such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases, including early-onset peripheral neuropathy, which manifests to a compensable degree within one year after the last date on which the veteran was exposed to an herbicide agent, will be service connected even if there is no in-service record of the disease. 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e). 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). 2. Entitlement to service connection for peripheral neuropathy of the bilateral feet, to include as due to herbicide agent exposure. As an initial matter, the Board notes that in September 2011 correspondence, the Veteran had alleged that he had been exposed to herbicide agents during the period of service he performed in Thailand from 1968 to 1969 and while flying over Vietnam during that time period. The Veteran had contended that flying over Vietnam should provide a presumption of exposure to herbicide agents, as it has been proven one could be exposed to Agent Orange in the air. To the extent he alleged that he was exposed to Agent Orange while flying over Vietnam, under applicable VA regulations, service in Vietnam does not include flying high-altitude missions in Vietnamese airspace. Further, receipt of the Vietnam Service Medal is not evidence of in-country service. For example, service members who were stationed on ships off-shore, or flew missions over Vietnam, were sometimes awarded the Vietnam Service Medal. There is also no presumption of exposure to herbicide agents in Thailand. As such, herbicide agent exposure in this circumstance would need to be shown on a facts-found basis. To this end, the Veteran had stated that while stationed in Thailand at U-Tapao Air Force base from September 1968 to September 1969, he spent a lot of time walking through and around the perimeter of the base, which he asserted was sprayed with herbicide agents to control foliage. The Veteran testified at the March 2018 hearing that he experienced bilateral foot peripheral neuropathy in service and that he left service with this disability. He testified that he regularly walked the perimeter of U-Tapao air base and slept in an open air barracks without walls, which he believed exposed him to herbicide agents. The Veteran testified his office was near the gate, which was very close to the perimeter of the base, which base was quite small at only one and a half miles around. The Veteran testified that the flight line was very close to buildings and that flights likely blew defoliant around the base. The Veteran expressed frustration that VA had lied to him many times, and that no one ever took time to help him prove his claims. The Veteran testified his neuropathy was so bad he could not walk anymore and that he had to use a wheelchair. As an initial matter, while the Department of Defense has conceded that herbicide agents were used along the perimeter of Royal Thai Air Force Bases during the Vietnam era, the Veteran's military occupation of Chief Clerk, as opposed to security personnel or a member of the security police squadron, weighs against a finding that the Veteran spent time on or near the perimeter of the U-Tapao air base. For example, of record are performance reports from when the Veteran served on the U-Tapao air base, which show that his job was solely administrative, and he worked in the "Orderly Room." He was responsible for processing all incoming and outgoing correspondence; preparing and typing all reports, messages, and related correspondence; maintaining all files and requisition, and posting all publications. He was described as performing many hours of overtime work in the office. He also supervised two individuals. These facts do not lend to a finding that the Veteran's administrative duties took to him to the perimeter of the base. The Veteran had reported walking everywhere on the base and avoided taking the bus because of robberies committed against service members. He described his barracks as being in proximity to the perimeter, where he was close enough to see the local people and their housing on the edge of the jungle. It was his belief that he was exposed to herbicides because the spraying had occurred prior to his arrival and that when planes were taking off and landing, the vegetation was blown around, which caused the herbicide to be blown around and in the air. He later added that spraying occurred while he was stationed on the base. Nevertheless, these facts do not lend to a finding that the Veteran's living quarters or trips into town took to him to the perimeter of the base. While the Veteran subsequently alleged he had walked along the perimeter of the base, he made that allegation after he had been informed that VA had found his job as chief clerk weighed against finding that he spent time on or near the perimeter of the base. Prior to that, the Veteran's allegation of exposure to herbicides while on the Thailand base was based on his walking on the base, his walking into town, and planes causing the herbicide to be blown around due to take offs and landings. The change in his story that he walked along the perimeter of the base is not credible. Thus, the Board finds that the Veteran's contentions are of diminished probative value and do not support a finding of his direct exposure to herbicide agents, including Agent Orange, based on the dust being "kicked-up" from the jet engine exhaust. Accordingly, in the absence of credible and probative evidence of actual exposure to herbicide agents, the Board finds that the Veteran was not exposed to herbicide agents during his service on the U-Tapao base. At the March 2018 hearing, the Veteran's representative had provided a citation to a Board decision involving a different veteran, where the Board, in that case, conceded herbicide exposure. She believed that the facts in that case were similar to those in the current claim and that VA should concede herbicide exposure in this case as well. The Board has reviewed that decision, which involved docket number 1542841. In that case, the veteran had served on the U-Tapao base from August 1966 to August 1967 and alleged that during his first two months at the base, he was assigned to a team working with Thai civilians clearing vegetation around the perimeter of the base, as the base was still under construction. The Board finds that the facts in that case are not similar to the facts in this case, as the Veteran did not allege helping to clear vegetation around the perimeter of the base or assisting with construction of some sorts. Thus, that case does not provide a basis to find that the Veteran in this case was exposed to an herbicide agent. In November 2012, the Veteran submitted two message board posts as evidence of herbicide agent exposure. Both posts come from the website https://vets.vuku.com/topic/28084/t/Agent-Orange-in-Thailand.html. The first post discussed herbicide agent usage in Korea and Vietnam. The Veteran circled a sentence that stated: In Vietnam, Agent Orange was sprayed from aircraft over large areas. Accordingly, there was far less ability to control its dispersion. This sentence does not establish the Veteran was involved in spraying herbicide agents in Vietnam or that he had in-country service by flying over the country. This post does not establish herbicide agent exposure in Thailand. The second post discussed the health of a pilot who sprayed herbicide agents during Operation Ranch Hand. It also discusses the poster's husband being in swift boats in the 1960s. The Veteran had not alleged he was involved in spraying herbicide agents during his flyover of Vietnam, so this post is not probative evidence of herbicide agent exposure. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran was exposed to herbicide agents in Thailand, and, therefore, herbicide agent exposure has not been shown on a facts-found basis. As herbicide agent exposure has not been shown on a presumptive or facts-found basis, it will not be addressed as a possible in-service injury or disease in the service connection analyses below. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for peripheral neuropathy of the bilateral feet. The reasons follow. As to evidence of a current disability, a July 2012 VA examination report shows that the Veteran was diagnosed with bilateral lower extremity peripheral neuropathy. Therefore, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the March 1976 periodic Report of Medical Examination (RME) shows that the Veteran reported experiencing the two little toes going numb occasionally. Thus, the facts establish that the second element of a service-connection claim is met. As to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against a nexus. For example, the June 1978 retirement RME documented numbness of the left little toe for two years that resolved with bigger shoes and primarily hot soaks. The RME also showed the feet and lower extremities were clinically evaluated as normal. On the July 1978 retirement Report of Medical History, the Veteran marked yes for ever having foot trouble and cramps in his legs, but there was no explanation of either issue. A March 1980 Specialist's Report showed an examiner documented the Veteran had no symptoms referable to the left foot during the examination. The examiner documented that examination of the left foot showed completely normal foot with normal pulses, skin sensation, and skin circulation. The fourth and fifth toes were slightly supinated but well within normal limits. As a result, the examiner wrote he was unable to give a diagnosis, etiology, or prognosis, and there was no indication of any serious continuing disease or anything that is likely to recur. An April 1980 VA examination report shows that the Veteran's peripheral nerves were brisk and symmetrical. These facts are against the Veteran leaving service with a foot disability and supports the finding that the 1976 in-service documentation of numbness was a temporary finding. On a November 1987 VA Form 21-2545, Report of Medical Examination for Disability Evaluation, when asked to list present complaints of symptoms, the Veteran did not report foot problems or symptoms. In an October 2007 VA treatment record, the Veteran denied any foot problems. A May 2008 private treatment record showed a review of the neurologic system that found no lateralization signs and gait and station were normal. An August 2008 VA treatment record shows the lower extremities were slightly sore but not significant enough to require pain medication. The Veteran experienced bilateral lower extremity edema. On the right, there was a slightly intact dorsalis pedis pulse. On the left, the edema was more of a reddish-purple coloring to the skin, but there was no skin breakdown or slough. The impression was bilateral deep venous thromboses. A July 2009 VA treatment record shows a foot sensory examination was normal, and foot pulses were normal. An August 2010 VA treatment record shows a foot sensory examination was normal with normal pulses and inspection. A February 2011 VA treatment record shows complaints of numbness in his feet, and he was being treated privately with Lyrica. A July 2012 VA examination report documents the Veteran reported experiencing pain and numbness in the bilateral feet in service, which was treated with larger shoes. The examiner documented the Veteran believed his neuropathy was related to lymphoma. The examiner did not provide a medical opinion on the etiology of the peripheral neuropathy of the bilateral feet, and the Veteran was not service connected for lymphoma during his lifetime. Thus, this examination report does not provide a nexus between the numbness in the bilateral feet and service. In June 2014 Dr. Rivera-Morales provided a positive nexus opinion. Dr. Rivera-Morales opined that the Veteran was in Vietnam from 1968 to 1969 and was exposed to Agent Orange. He noted the Veteran's 1978 report of foot trouble and leg cramps at retirement from service. He stated the evidence provided by the Veteran showed he was having evidence of neuropathy at the end of his military service. This medical opinion is based upon inaccurate information, namely that the Veteran was in Vietnam from 1968 to 1969 and was exposed to Agent Orange. The Veteran flew over Vietnam en route to Thailand, which is not considered in-country service in Vietnam. Also, within this decision, the Board has determined the preponderance of the evidence is against the Veteran being exposed to herbicide agents, to include Agent Orange. As Dr. Rivera-Morales' opinion is based on an inaccurate factual premise, it has no probative value. In October 2015, the Veteran underwent a VA examination. The examiner documented that the Veteran reported that he had left lower extremity numbness, which had been treated since he was in service, but the examiner noted multiple non-VA medical records documenting normal bilateral lower extremity neurologic examinations from multiple sources after separation. The examiner opined that bilateral lower extremity diabetic peripheral neuropathy is not caused by or a result of left little toe numbness noted during service. The examiner explained that the intermittent left fourth and fifth numbness had resolved when the Veteran switched to a larger shoe, as documented on the retirement physical of June 1978. The examiner added that multiple post-service medical records documented normal lower extremity neurologic examinations, and that it was more likely than not that peripheral neuropathy is due to poorly controlled, long-standing diabetes. The Board affords this medical opinion high probative value because the examiner had performed an in-person physical examination, reviewed the evidence of record, including both private and VA treatment records, the examiner provided a rationale that was based upon what the evidence showed and medical principles, and the facts documented by the examiner were an accurate description of what the evidence showed. In May 2018, Dr. Graf provided a positive nexus opinion. Dr. Graf opined that there was documented exposure to Dioxin, a persistent organic pollutant present as a contaminant in Agent Orange, in service. Dr. Graf wrote the effects of Dioxin had a demonstrated negative impact on the Veteran's health beginning during service and now lifelong. Dr. Graf found that the Veteran's feet met the criteria under Diagnostic Codes 5277 (weak foot) and 5279 (metatarsalgia), as well as diabetic neuropathy. Dr. Graf opined that peripheral neuropathy of the bilateral feet and bilateral foot pain were either present and aggravated by military service or began in service. The medical opinion is based upon inaccurate information that the Veteran was documented as being exposed to Dioxin, as the Board has determined the preponderance of the evidence is against the Veteran being exposed to herbicide agents, to include Agent Orange. Further, Dr. Graf did not discuss multiple, relevant facts, such as the March 1980 examination that found no diagnosis involving the feet, the April 1980 finding of the peripheral nerves being brisk and symmetrical, the Veteran's October 2007 denial of foot problems, the May 2008 normal neurological examination, and the July 2009 and August 2010 normal foot sensory examinations when providing his opinion. A medical opinion based upon inaccurate information has no probative value. The first evidence of peripheral neuropathy is in February 2011 which is 30 years after service. There is no competent and credible evidence that the Veteran's peripheral neuropathy of the bilateral feet first had its onset within one year of service discharge so as to warrant presumptive service connection for peripheral neuropathy as a chronic disease of the nervous system. Therefore, presumptive service connection is not warranted. The Veteran, while he was alive, and the appellant have alleged their belief that peripheral neuropathy of the bilateral feet is related to herbicide agent exposure and/or to in-service numbness of the little toes. However, they are not competent to offer opinions as to the etiology of peripheral neuropathy, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's and his wife's opinions are nonprobative evidence. At the present time, there is no competent and probative evidence of a nexus between the diagnosis of peripheral neuropathy of the bilateral feet and service to weigh against the October 2015 negative nexus opinion. To reiterate, the two positive opinions submitted were based on an inaccurate factual premise. For all the reasons described above, the Board finds the preponderance of the evidence is against the Veteran's claim for service connection for peripheral neuropathy of the bilateral feet, to include as due to herbicide agent exposure. There is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. McDaniels, Associate 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.