Citation Nr: 21040164 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-53 745 DATE: July 2, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the right lower extremity is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity is denied. FINDINGS OF FACT 1. The Veteran's right lower extremity neuropathy did not manifest in service or to a compensable degree within one year of his separation from service, and it is less likely than not due to his active service, to include conceded herbicide exposure. 2. The Veteran's left lower extremity neuropathy did not manifest in service or to a compensable degree within one year of his separation from service, and it is less likely than not due to his active service, to include conceded herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right lower extremity neuropathy, to include as due to in-service herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1116, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for left lower extremity neuropathy, to include as due to in-service herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1116, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2015 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Board previously remanded this matter for further development in January 2019. Service Connection The Veteran asserts that his bilateral lower extremity neuropathy, diagnosed variously as peripheral sensory neuropathy, polyneuropathy, and chronic idiopathic ataxic neuropathy, is related to his active military service, to include in-service herbicide exposure. Service connection may be established for disability resulting from personal injury incurred or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Once the evidence has been assembled, it is the Board's responsibility to determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Certain chronic diseases, to include organic diseases of the nervous system such as peripheral neuropathy, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Moreover, if a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are presumed to be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. However, if evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (quoting 38 C.F.R. § 3.303(b)). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)." Id. at 1337. In regard to the Veteran's assertion that his neuropathy is the result of exposure to herbicides during active duty service in the Republic of Vietnam, the law provides that "a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent... unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during service." 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307. In this case, service records confirm the Veteran was deployed to and received a Purple Heart for service in the Republic of Vietnam. As such, his exposure to herbicides is presumed and conceded by the Board. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, and has one of the diseases enumerated under 38 C.F.R. § 3.309(e), that disease shall be service-connected (provided the requirements of 38 C.F.R. § 3.307(a)(6) have been met) even though there is no record of such disease during service. 38 U.S.C. §§1113, 1116; 38 C.F.R. §§ 3.307, 3.309. The diseases listed under 38 C.F.R. § 3.309(e) shall have become manifest to a degree of ten percent or more at any time after service, with some exceptions. 38 U.S.C. §§1116; 38 C.F.R. § 3.307(a)(6)(ii). The Board observes that only "early onset" peripheral neuropathy is listed under 38 C.F.R. § 3.309(e), and is noted as one of the conditions that 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 presumptive service connection. 38 C.F.R. § 3.307(a)(6)(ii). 1. Entitlement to service connection for peripheral neuropathy of the right lower extremity 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity The Veteran's service treatment records are silent for complaints of or treatment for neuropathy symptoms in the lower extremities, and during his March 1968 separation examination he specifically denied "foot trouble." In September 2015 correspondence, the Veteran described complaining of feet and leg issues in service but stated he was sent back to duty. He also reported that upon his return from Vietnam he began to have "problems" with his legs and numbness in his left arm, and indicated that he sought chiropractic treatment for tingling in his arms and legs in the 1970's, which the chiropractor attributed to cervical and lumbar disc issues. September 2004 VA treatment records indicate the Veteran initially complained of slight headaches, a general malaise and tingling legs for the past several days, although neurological findings were normal. In 2009, the Veteran sought service connection for numbness in his bilateral upper extremities and for a left foot condition, which he indicated began in 2005. According to October 2009 VA treatment records, the Veteran denied neurological problems, and March 2010 private treatment records note neurological deficits, but only in the upper extremities. In August 2010 correspondence, the Veteran related a diagnosis of neuropathy in both his feet and hands and stated his belief that both were caused by his in-service exposure to Agent Orange. The Veteran was afforded a VA examination in October 2010. He reported bilateral hand and foot numbness and tingling, worse on the left side. The examiner noted no diagnosis of diabetes mellitus but confirmed exposure to Agent Orange. Testing revealed decreased vibratory sense over the hands and feet with intact proprioception, and the Veteran was diagnosed with sensory neuropathy. The examiner noted evidence of "mild, early sensory polyneuropathy." In December 2010 a VA podiatrist noted the presence of left foot neuritis. August 2014 VA treatment records record left foot weakness as well as a diagnosis of gout, which was noted as being effectively treated with medication. The Veteran reported his left foot symptoms had been present for approximately seven years, and, after EMG testing, was diagnosed with idiopathic neuropathy. October 2014 VA treatment records note that during an appointment with a physical medicine and rehabilitation doctor, the Veteran reported bilateral lower extremity weakness and numbness, worse on the left, since 1999. After additional nerve conduction studies, the treating clinician, Dr. R., noted electronic evidence of "moderately severe sensorimotor polyneuropathy" and increased the Veteran's dosage of previously prescribed gabapentin. In an August 2015 addendum, Dr. R. noted that there was no presently identifiable medical condition that could explain the presence of the Veteran's polyneuropathy, but stated the "Veteran does report Agent Orange exposure during his Vietnam deployment in 1968, which is known to cause neuropathies." In September 2015 correspondence, the Veteran reported that Dr. R. opined in October 2014 that his neuropathy "more likely than not was from chemical exposure in Vietnam." The Veteran indicated that he asked, "like Agent Orange" to which Dr. R. replied "yes, like Dioxin." The Veteran also cited several Board cases addressing the issue of neuropathy as a result of in-service exposure to herbicides. October 2015 VA treatment records indicate the Veteran underwent additional testing in order to determine the etiology of his neuropathy. He reported a 40-year history of progressively worsening bilateral lower extremity tingling and numbness in the toes and feet. After testing confirmed bilateral lower extremity neuropathy, worse on the left, the staff physician noted "peripheral neuropathy, etiology undetermined." In his October 2016 Form 9 appeal, the Veteran claimed his neuropathy was due to Agent Orange exposure and emphasized his consistent complaints of lower extremity neuropathy symptoms to VA treatment providers since 2004. He also cited to additional Board cases and stated that VA could not prove "beyond a reasonable doubt" that his peripheral neuropathy was not caused by Agent Orange or that he did not have leg and foot complaints earlier in life. As noted above, the Board remanded these issues in order to afford the Veteran an additional VA examination to specifically address whether the Veteran's peripheral neuropathy was related to herbicide exposure in Vietnam. This examination took place in January 2020. The examiner noted an initial diagnosis of peripheral neuropathy in 2010, with the onset of symptoms documented as early as 1999. The Veteran reported moderate constant pain, intermittent pain, paresthesias and/or dysesthesias and numbness in both lower extremities. The Veteran's sensory testing was normal except for decreased sensation in the feet and toes bilaterally, and mild incomplete paralysis was recorded in all lower extremity nerve groups bilaterally. The January 2020 VA examiner opined that the Veteran's bilateral lower extremity neuropathy was less likely than not first manifested in or was otherwise due to his active service, to include conceded exposure to herbicides. The examiner cited the National Academy of Sciences' Veterans and Agent Orange: Update 11 from 2018, which found inadequate or insufficient evidence to determine there was an association between delayed onset chronic neuropathy (defined as having its onset more than one year after last exposure) and exposure to tactical herbicides. Noting the onset of the Veteran's neuropathy was well after his separation from service, the examiner found that he was not entitled to presumptive service connection as his neuropathy was not considered "early onset." With regard to direct causation, the examiner, referencing the medical database UpToDate, stated that herbicide exposure is neither a known cause nor even a recognized risk factor for the development of late-onset peripheral neuropathy. After review of the evidence of record, the Board finds that entitlement to service connection for bilateral lower extremity neuropathy is not warranted on a presumptive basis. As noted above, neuropathy is only considered presumptively caused by herbicide exposure if it manifests to a degree of 10 percent or more within one year after the date of last exposure to herbicides ("early onset"). 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). The Veteran's service treatment records are silent for complaints of or treatment for symptoms of lower extremity neuropathy, and he specifically denied foot issues during his separation examination. Examining the Veteran's lay statements, while he has claimed he complained about his feet and legs during service, the earliest he has reported the onset of symptoms of lower extremity neuropathy specifically is sometime in the 1970's, which at the earliest would be two years after his separation from service. The Veteran has also variously reported the onset of his symptoms as occurring in 1975, 1999, 2004, 2005, and 2007 to different treating clinicians. The Veteran's statements with regard to the onset of his lower extremity neuropathy symptoms are contradictory, which lowers the overall probative value of his recollections. See State v. Spadafore, 220 S.E.2d 655, 661 (W. Va. 1975) (observing that, when evaluating inconsistent or contradictory testimony, "[t]he fact that [a witness] has stated the matters differently on a previous occasion tends to demonstrate either a failure of memory, or a lack of integrity, and in either event it weakens and impairs the value of his testimony"). See also Seng v. Holder, 584 F.3d 13, 19 (1st Cir.2009) (notwithstanding the declarant's intent to speak the truth, statement may lack credibility because of faulty memory). In this case, the Board finds the Veteran's statements reporting a later onset of bilateral lower extremity neuropathy symptoms to be more probative, as they are not directly contradicted by his service treatment records and it is presumed that a person will be as honest with their treatment providers as possible in an effort to obtain relief from their symptoms. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). The Board finds that the objective medical and most probative lay evidence is against finding that the Veteran manifested lower extremity neuropathy symptoms to a compensable degree during or within one year of his active service and therefore last possible exposure to herbicides. As such, entitlement to presumptive service connection as due to in-service herbicide exposure is not warranted. 38 C.F.R. §§ 3.307, 3.309. Similarly, as there is no probative evidence of continuity of symptomatology of an organic disease of the nervous system since service, service connection based on chronicity is not merited. Id. As reflected above, there is no medical consensus as to the appropriate diagnosis or etiology of the Veteran's bilateral lower extremity neuropathy disorder. In cases such as this, it is within the Board's province to weigh the probative value of the varying opinions. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). In this case, the Board finds the January 2020 VA examiner opinion to be more probative than the second-hand opinion of Dr. R. The VA examiner provided an opinion based on examination of the Veteran, review of his service and post-service treatment records and provided a supporting rationale that cited to relevant medical literature. Conversely, the opinion of Dr. R. was relayed by the Veteran, did not contain a supporting rationale, and is not reflected in the doctor's VA treatment notes, which observe only that the cause of the Veteran's neuropathy is unknown, and that Agent Orange has been shown to cause neuropathies. The Board has already determined that the most probative evidence of record indicates a later onset of lower extremity neuropathy symptoms, and the January 2020 examiner noted that there is no evidence linking this type of neuropathy with exposure to herbicides, while Dr. R. did not discuss which types of neuropathies are caused by herbicides. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (favorable evidence which does little more than suggest possibility of causation is insufficient to establish service connection). Finally, the Veteran has cited several Board decisions in support of his claim of entitlement to service connection. The Board observes these decisions are not precedent. Notably, 38 C.F.R. § 20.1303 states: Although the Board strives for consistency in issuing its decisions, previously issued Board decisions will be considered binding only with regard to the specific case decided. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. Importantly, the facts of the cases cited by the Veteran are not identical to the facts of his own case. The evidentiary records of other Veterans are in relevant respects quite different from the Veteran in the present case on appeal. Every Veteran's case presents different facts which of necessity will tend to yield different outcomes. Also, in this case, there has been a recent and comprehensive evaluation of the Veteran's medical records that considered his specific medical history and lay statements and contained an opinion with supporting rationale that referenced relevant medical literature. Finally, the Board notes that the "beyond a reasonable doubt" standard is not applicable in this case, since the Board as fact-finder is only required to determine whether the evidence preponderates for or against the claim or, in the alternative, whether there is an approximate balance of positive and negative evidence. See Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). After review of the record, the Board finds that the most probative evidence indicates the Veteran did not manifest neuropathy of the bilateral lower extremities in service or within one year of separation, and that his late onset neuropathy cannot be considered due to service. While the Veteran has opined that his current lower extremity neuropathy is the result of in-service herbicide exposure while serving as a medic, the record does not show that he currently has the medical training or credentials to make such a determination. As such, the Board finds his opinion less probative than that of the VA examiner, a licensed medical doctor. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide opinions as to more complex medical questions). As a preponderance of the evidence is against finding an in service onset or cause for the Veteran's lower extremity neuropathy, the benefit of the doubt rule is not for application, and the claims must be denied. 38 U.S.C. §5107(b); Gilbert, 1 Vet. App. at 53. C.B. IWANOWSKI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, 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.