Citation Nr: 21029768 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-18 130 DATE: May 17, 2021 ORDER Service connection for bilateral lower extremity (BLE) peripheral neuropathy is denied. FINDING OF FACT The most probative evidence does not show that the Veteran's BLE peripheral neuropathy was chronic in service or manifest to a compensable degree within the applicable presumptive period (one year); continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for BLE peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had service from January 1968 to June 1969, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board remanded the appeal. The Board finds that there has been substantial compliance with the Board's prior remand directives. Dyment v. West, 13 Vet. App. 141 (1999). Service connection for BLE peripheral neuropathy The Veteran contends that he has peripheral neuropathy due to in-service exposure to herbicide agents. By virtue of the Veteran's service in the Republic of Vietnam, in-service exposure to herbicide agents is conceded. The Veteran asserts that he began having "strong and sharp pins and needles in both feet and around [his] ankles accompanied with balance issues since the early 1970s just after leaving Vietnam." See Correspondence (May 2015). He denies receiving treatment in service or seeking treatment post service because his symptoms did not have a functional impact. See C&P Exam (March 2021). He relates being told the pins, needles, and numbness were early symptoms of multiple sclerosis (MS) which was diagnosed in 2002. See Form 9 (March 2018). Early onset peripheral neuropathy is presumptively associated with exposure to certain herbicide agents for veterans that served in the Republic of Vietnam during the applicable period if manifested to a degree of 10 percent or more within one year of the last date the Veteran was presumed to have been exposed. 38 C.F.R. § 3.307(a)(6)(ii). Peripheral neuropathy is also a chronic disease under 38 C.F.R. § 3.309(a) which must manifest to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307(a)(3). Therefore, the evidence must how that symptoms of peripheral neuropathy manifested to a degree of 10 percent or more in or prior to June 1970 to warrant service connection. The Board concludes that, while the Veteran has been diagnosed with peripheral neuropathy during the appeal period, the preponderance of the evidence is against finding that the disease initially manifested during active duty, manifested to a compensable degree within the applicable presumptive period, or is otherwise etiologically related to an in-service injury or disease, to include exposure to herbicide agents. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.307, 3.309. The provisions regarding presumptive service connection for early onset peripheral neuropathy based on herbicide exposure and/or chronic symptomatology are not applicable here because it is uncontroverted that peripheral neuropathy had not manifested within one year after the date of last exposure to herbicides which coincides with the date of separation from service. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307 (a)(3), (6), 3.309(a), (e). Service connection may be established with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167-68 (1999). However, the Veteran does not claim that peripheral neuropathy began in service, and the evidence does not show it is otherwise related to service, including conceded herbicide exposure. Service treatment records (STRs) reflect no complaints or findings for peripheral neuropathy or any neurological or lower extremity condition. March 1969 separation examination was clinically normal in all pertinent aspects; and the Veteran denied lameness, foot trouble, neuritis, cramps in legs, and swollen or painful joints. See STR (December 2014). Symptoms of tingling and numbness in the ankles are first noted to have manifested in 1990, over two decades after separation from active service and the Veteran's lasty presumed exposure to herbicide agents. See a VA treatment record dated in March 2015. At a neurology consult for MS, the Veteran reported that numbness and tingling in the ankles had begun 15 years prior (1990). Id. The Veteran submitted an initial claim for service connection for BLE due to exposure to herbicide agents in June 2014. Neuropathy was diagnosed in 2014. A March 2021 VA medical opinion found the BLE peripheral neuropathy was less likely than not incurred in or caused by service. Referencing a 21-year gap in the medical evidence, the rationale stated there was insufficient evidence to support the condition began prior to 1990. Additionally, the examiner was unable to confirm that the Veteran's current BLE peripheral neuropathy was incurred in, caused by, or could be characterized as early-onset peripheral neuropathy associated with herbicide exposure. See the March 2021 VA examination report. The presence of symptoms described in the Form 9 did not provide an etiology for the condition, and the Veteran's diagnosed multiple sclerosis can present with similar symptoms. The opinion was unable to establish a nexus between exposure to herbicide agents in service and the Veteran's BLE peripheral neuropathy. The Board accepts that the Veteran believes BLE peripheral neuropathy is related to in-service exposure to herbicide agents. The Board further accepts that the Veteran is competent to report symptoms of peripheral neuropathy (e.g. tingling, pins and needles, numbness). Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that he reports onset of symptoms within the first post-service year, the Board finds that his statements are not credible for the following reasons: (1) the many decades intervening service and the first documented complaints of numbness and tingling in the BLEs (2) his reports of peripheral neuropathy symptoms soon after service made in conjunction with his application for compensation are incongruous with his reports to medical professionals in pursuit of treatment, wherein he reported onset of symptoms in 1990. The Board acknowledges the Veteran's report that he did not seek treatment after service because the condition did not have any functional impact. See the March 2021 VA examination report. However, the Board finds that the most probative evidence, his statements to VA medical professionals regarding an onset of 1990, weighs against the credibility of this statement. The etiology of peripheral neuropathy is a complex medical question which requires a knowledge of the neurological system and disease processes beyond the ken of a layperson. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007). Therefore, the Veteran's opinion regarding the etiology of this condition has no probative value. He has not presented a favorable medical opinion to weigh in this matter. In fact, he has reported that his physicians have stated that "the problem with his feet and ankles was probably the onset of MS" which weighs against the Veteran's claim. See a May 2015 statement from the Veteran. The Board assigns greater probative value to the normal STRs, coupled with over two decades intervening service and the first documented complaints of symptoms. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The lengthy passage of time in which the Veteran did not complain of symptoms is negative evidence against the claim. Additionally, the Board assigns greater probative value to the Veteran's statements regarding onset of symptoms made to medical providers than those made in pursuit of monetary benefits. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (holding that the Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Lastly, the Board assigns greater probative value to the March 2021 VA medical opinion as it was prepared by a trained, neutral medical professional and reflects review of the relevant medical records, including STRs and VA treatment records, and the Veteran's medical history, and is supported by a complete rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The evidence indicates that there are outstanding private treatment records, and the Board has considered whether to remand the case for additional development to obtain these records. However, based on the evidence of record and the Veteran's own statements that he did not seek treatment in or near the presumptive period, these records would not assist the Veteran in his claim as they would not substantiate whether peripheral neuropathy manifested to a degree of 10 percent or more within one year of separation from service/last exposure to herbicide agents. Considering the above, the most probative evidence of record is unfavorable to the Veteran's appeal. As the preponderance of the evidence is against the Veteran's appeal, the doctrine of reasonable doubt is not applicable in this case. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Edwards 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.