Citation Nr: 21029487 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-33 178 DATE: May 13, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the right lower extremity, secondary to Agent Orange exposure, is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity, secondary to Agent Orange exposure, is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a peripheral nerve condition, separate from his already service connected radiculopathy of the right lower extremity, at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had a peripheral nerve condition, separate from his already service connected radiculopathy of the right lower extremity, at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the right lower extremity, secondary to Agent Orange exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for peripheral neuropathy of the left lower extremity, secondary to Agent Orange exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1965 to February 1969. This appeal arose to the Board of Veterans' Affairs (Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues on appeal in November 2018, as well as entitlement to service connection for bilateral hearing loss. In a September 2020 rating decision, the RO granted service connection for bilateral hearing loss. This constitutes a full award of the benefits sought on appeal with respect to that issue. Service Connection 1. Entitlement to service connection for peripheral neuropathy of the right lower extremity, secondary to Agent Orange exposure is denied. 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity, secondary to Agent Orange exposure is denied. The Veteran contends that he is entitled to service connection for peripheral neuropathy of the right and left lower extremities. See March 2014 third party correspondence. As noted in the November 2018 Remand, the RO has conceded that the Veteran was exposed to Agent Orange in service. See also military personnel records. In an August 2020 rating decision, the RO granted service connection for radiculopathy of the left and right lower extremities as secondary to service-connected lumbar strain with degenerative disc and joint disease. Nonetheless, in an October 2020 appellate brief, the Veteran's representative contends that the Veteran is entitled to service connection for peripheral neuropathy in addition to the ratings provided for the lower extremity radiculopathy. In particular, the representative urges that the Veteran has symptoms separate and distinct from his diagnosed lower extremity radiculopathy. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101 (3), 1112(a); 38 C.F.R. §§ 3.307 (a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Organic diseases of the nervous system are among the listed conditions, with a presumptive period of one year following service. For Veterans exposed to certain herbicide agenss, service connection may be presumed for certain listed diseases, including certain neuropathic conditions. 38 C.F.R. § 3.309 (e). For peripheral neuropathy, the condition must become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection. Delayed onset peripheral neuropathy is not listed among the diseases presumed to be associated with Agent Orange exposure; only early-onset peripheral neuropathy is listed. 38 C.F.R. § 3.309 (e). Here, service treatment records are silent for any symptoms, treatment, or diagnosis of neurological conditions. In fact, the February 1969 examination for release from active duty noted normal feet, lower extremities, and neurologic. Post-service, the Veteran was seen for a VA Agent Orange Program in March 2014. At that time, the examination indicated that the peripheral nerves were intact and Romberg testing was well performed, except for fine hand tremors and head tremor. Abnormal results were noted on the right toe tips with reduced sensation to soft touch. Subsequently, the Veteran was noted to have no focal neurologic deficits. See e.g. May 2018 VA treatment records. The Veteran was afforded VA examinations in September 2019 pursuant to the Board's remand, and an August 2020 claim for service connection for a lumbar spine disability and peripheral neuropathy. A disability benefit questionnaire (DBQ) was completed for both peripheral nerves conditions and a back condition. In the peripheral nerve conditions DBQ, the examiner noted only one diagnosis. The examiner noted only bilateral lower extremity peripheral neuropathy (radiculopathy) secondary to degenerative disc and joint disease. The Veteran reported that symptoms had onset in 2005 with numbness, tingling, itching, and burning, as well as back pain which radiates down both legs. Upon examination, the examiner noted symptoms of bilateral lower extremity pain, paresthesias and or dysesthesias, and numbness. The examiner also noted reduced muscle strength on all motion tested, atrophy of the thighs, hypoactive bilateral ankle reflexes, and decreased sensation at light touch testing. The examiner noted that the sciatic nerves were affected, and no response was provided for any other nerve. In the back conditions DBQ, the examiner indicated that the femoral nerve was involved. Lastly, the examiner noted that EMG studies had not been performed. In the accompanying September 2019 medical opinion, the examiner concluded that the Veteran's present condition of bilateral lower extremity peripheral neuropathy (radiculopathy) is at least as likely as not incurred in or caused by the chronic lumbar strain. At different points in the opinion, the examiner identified the Veteran's condition as bilateral lower extremity radiculopathy (a peripheral nerve condition) and then as peripheral neuropathy. For example, the examiner stated, "The [V]eteran suffered chronic recurrent strains of the lumbar spine and beyond natural progression developed bilateral lower extremity radiculopathy ([p]eripheral nerve condition). After service there was no injuries or medical conditions to indicate his peripheral neuropathy would have developed from some other condition." When viewed as a whole, and upon consideration of the VA examinations, it is clear that the examiner is referring to one single disability of the bilateral lower extremities. This single diagnosis is radiculopathy of the bilateral extremities, a peripheral nerve condition, as opposed to peripheral neuropathy. Upon review of the above evidence, the Board concludes that service connection for peripheral neuropathy of the right and left lower extremities is not warranted. The Board concludes that the Veteran does not have a current diagnosis of peripheral neuropathy of the right or left lower extremity, or any related disability which has not already been service-connected, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As noted above, the September 2019 VA examiner evaluated the Veteran and determined that there was a single diagnosis of peripheral nerve conditions. The opinion attributed the Veteran's bilateral lower extremity signs and symptom to radiculopathy, as opposed to peripheral neuropathy. Although the March 2014 VA treatment records noted peripheral neuropathy of the toes, the Board notes that this was not based on EMG or other advanced testing. Rather, the assessment was based on decreased sensation upon testing. The September 2019 VA examiner considered the Veteran's clinical history prior to rendering the singular diagnosis in this case. In contrast, it is not known whether the clinical assessment given in March 2014 considered the Veteran's clinical history. Further, more extensive neurologic testing was performed at the September 2019 VA examination. Thus, the Board finds the diagnosis provided by the September 2019 VA examiner more probative than the conflicting assessment noted in VA clinical assessments. Lastly, the Board notes that the Veteran and his representative believe that there are two separate diagnosis, and disabilities, at issue. The Veteran is competent to report symptoms of pain, numbness, burning and tingling and itching. However, neither he nor his representative are competent to relate those symptoms to a diagnosis. Rather, the issue is medically complex, as it requires medical education, knowledge of the interaction between multiple organ systems in the body, and the ability to distinguish between two similar but distinct diseases. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent September 2019 VA opinion which has related each of those symptoms to a singular, service-connected diagnosis. Ultimately, the weight of the evidence indicates that the Veteran's reported symptoms are attributable to his service-connected radiculopathy of the bilateral lower extremities and there are no other diagnosis. As such, the benefit of the doubt doctrine does not apply, and service connection is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.