Citation Nr: 21029073 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 12-05 745 DATE: May 12, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to herbicide exposure and as secondary to service-connected type 2 diabetes mellitus, is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to herbicide exposure and as secondary to service-connected type 2 diabetes mellitus, is denied. FINDINGS OF FACT 1. The Veteran's left lower extremity peripheral neuropathy is not related to service and did not manifest within one year of separation from service or exposure to herbicide agents. 2. Left lower extremity peripheral neuropathy is not caused or aggravated by a service-connected disability, to include type 2 diabetes mellitus. 3. The Veteran's right lower extremity peripheral neuropathy is not related to service and did not manifest within one year of separation from service or exposure to herbicide agents. 4. Right lower extremity peripheral neuropathy is not caused or aggravated by a service-connected disability, to include type 2 diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for service connection for the left lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310(a). 2. The criteria for service connection for the right lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1971 to July 1973, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in June 2019. The claim was remanded for the RO to obtain an etiology opinion from a qualified examiner. In February 2021, an addendum opinion by a qualified examiner was submitted. Thus, the Board finds that the AOJ substantially complied with the June 2019 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for peripheral neuropathy of the left lower extremity 2. Entitlement to service connection for peripheral neuropathy of the right lower extremity The Veteran claims his left and right lower extremity peripheral neuropathy is related to his military service, to include herbicide exposure. He has alternatively contended that he has left and right lower extremity peripheral neuropathy that is secondary to his service-connected diabetes mellitus. For the reasons discussed below, the Board finds the evidence weighs against a finding that the Veteran's current disabilities are related to service. Therefore, service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires: (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, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). For certain diseases with a relationship to herbicide agent exposure, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962 to May 7, 1975. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Among these diseases is early-onset peripheral neuropathy, which, unlike other diseases presumptively related to herbicide agents, must manifest within one year of the last date of presumptive exposure to trigger the presumption of a relationship. 38 C.F.R. § 3.307(a)(6)(ii). Absent a presumptive relationship, the Veteran may establish service connection on a direct basis if the evidence shows that his current peripheral neuropathy was, in fact, caused by exposure to Agent Orange or some other incident of service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Turning to the evidence, service treatment records (STRs) do not reflect any symptoms of or treatment for peripheral neuropathy, and no such abnormality was noted at the Veteran's July 1973 separation examination. In July 2000, VA treatment records indicated the Veteran had undergone an arterial study for complaints of constant tingling in his right leg. No evidence of arterial occlusive disease was noted. In January 2009, a VA treatment podiatry consult note indicated the Veteran had presented for diabetes with neurological conditions. Upon examination, he noted an occasional tingling sensation. A May 2009 VA treatment podiatry note indicated the Veteran had a history of type II diabetes and neuropathy. An April 2010 VA examination found no evidence of peripheral neuropathy of the Veteran's lower extremities. A May 2013 VA treatment record indicated the Veteran had peripheral neuropathy, which was possibly related to his diabetes. During a March 2016 VA examination, the examiner found that there was no pathology or diagnosis of any diabetic peripheral neuropathy in the evidence of record. It was noted the Veteran has "sciatica due to his non-service-connected lower back condition which is more likely than the cause of his claimed symptoms in the bilateral extremities." It was noted, there is no evidence of any permanent aggravation of the Veteran's sciatica condition by the service-connected diabetes in the evidence of record, and there is no medical nexus for diabetes to cause sciatica. An April 2019 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with bilateral lower extremity lumbar radiculopathies. Initially, the examiner noted, "the Veteran has evidence of bilateral lower extremity chronic radiculopathies which would account for the Veteran's noted symptoms in the bilateral lower extremities. There is no evidence of any diabetic peripheral neuropathy on EMG dated 4/4/18 or in the evidence of record." The examiner opined the Veteran's bilateral lower extremity radiculopathy is less likely incurred in or caused by service to include exposure to herbicides (such as agent orange) as there is no evidence of any neuropathy or radiculopathy during service. It was reasoned, there is no evidence of any radiculopathy or neuropathy manifesting within one year of service or exposure to herbicides such as agent orange in the evidence of record. It was noted, the Veteran's current bilateral lower extremity radiculopathy is likely due to the Veteran's non-service-connected lumbar degenerative disc disease per the evidence of record. The examiner also opined the Veteran's bilateral lower extremity radiculopathy is less likely proximately due to or the result of the Veteran's service-connected diabetes as there is no medical nexus for diabetes to cause lumbar radiculopathy. It was noted, the Veteran's bilateral lumbar radiculopathy is caused by his non-service-connected lumbar degenerative disc disease with his lumbar disc protrusion impinging his nerves per lumbar spine MRI dated in November 2017. Lastly, the examiner opined the Veteran's bilateral lower extremity radiculopathy was not permanently aggravated beyond the normal disease progression by the Veteran's service-connected diabetes since there is no evidence of any permanent aggravation or worsening of the Veteran's bilateral lumbar radiculopathy by the Veteran's service-connected diabetes in the evidence of record. A February 2021 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with peripheral neuropathy of the left and right lower extremity. The examiner opined it was less likely than not that the peripheral neuropathy for the left and right lower extremity is related to military service, to include conceded herbicide exposure. The examiner also opined the condition is less likely than not proximately due to or the result of a service-connected condition. It was reasoned, the Veteran was diagnosed with diabetes in 2007 and there was no indication in the records that there was confirmed diabetic peripheral neuropathy. In November 2018, after complaining of tingling and burning of both feet, an EMG revealed evidence of L4-S1 and right L5 chronic radiculopathies. It was noted "the Veteran diagnosis of diabetes was made approximately in 2007, and there was no indication in the records that there was confirmed diabetic peripheral neuropathy. The Veteran's November 2017 MRI supports the notion that the current radiculopathy is from the spine, and not an aggravation of diabetes mellitus. The examiner acknowledged early onset peripheral neuropathy is a presumptive disease associated with exposure to Agent Orange or other herbicides during military service; however, it must be at least 10 percent disabling within one year of herbicide exposure, which was not found. Citing to medical literature, the examiner reasoned, Lumbosacral radiculopathy is a term used to describe a pain syndrome caused by compression or irritation of nerve roots in the lower back. It can be caused by lumbar disc herniation, degeneration of the spinal vertebra, and narrowing of the foramen from which the nerves exit the spinal canal. Symptoms include low back pain that radiates into the lower extremities in a dermatomal pattern. Other accompanying symptoms can include numbness, weakness, and loss of reflexes, although the absence of these symptoms does not exclude a diagnosis of lumbosacral radiculopathy. Lumbosacral radiculopathy is the clinical term used to describe a predictable constellation of symptoms occurring secondary to mechanical and/or inflammatory cycles compromising at least one of the lumbosacral nerve roots. Patients can present with radiating pain, numbness/tingling, weakness, and gait abnormalities across a spectrum of severity. Depending on the nerve root(s) affected, patients can present with these symptoms in predictable patterns affecting the corresponding dermatome or myotome. The noxious stimulus of a spinal nerve creates ectopic nerve signals that are perceived as pain, numbness, and tingling along the nerve distribution. Lesions of the intervertebral discs and degenerative disease of the spine are the most common causes of lumbosacral radiculopathy. However, any process that causes irritation of the spinal nerves can cause radicular symptoms. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the current disabilities are not related to service. Initially, the Board notes the Veteran served in Vietnam during the qualifying period and herbicide exposure is therefore presumed. However, the Board finds that the evidence weighs against a finding that peripheral neuropathy is related to service or manifested within one year of separation or exposure to herbicide agents. The Veteran first reported tingling in July 2000, 27 years after service. The most probative evidence of record is the February 2021 VA examination. In providing a negative opinion, the examiner provided an adequate rationale noting the Veteran is suffering from lumbosacral radiculopathy that includes symptoms of low back pain radiating into the lower extremities in a dermatomal pattern. The Veteran is not service-connected for a low back disability. Furthermore, the examiner found the Veteran's bilateral lower extremity neuropathy is not related to the service-connected diabetes or herbicide exposure. There are no contrary competent medical opinions of record. While the Veteran is competent to report the tingling pain he experiences, he is not competent to provide opinions on the etiology of his neuropathy. The Board finds that these matters are medical in nature and require medical knowledge to resolve. Therefore, the Veteran's opinion as to the etiology of bilateral upper extremity peripheral neuropathy is not competent evidence under the circumstances of this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For these reasons, the Board finds that the evidence weighs against a finding that the left and right lower extremity peripheral neuropathy is related to service or the service-connected diabetes; or manifested within one year of separation for exposure to herbicide agents. Service connection is therefore denied. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jackman, 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.