Citation Nr: 21040446 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-42 623A DATE: July 3, 2021 ORDER Service connection for peripheral neuropathy of the right lower extremity is denied. FINDING OF FACT The preponderance of the evidence is against finding that peripheral neuropathy of the Veteran's right lower extremity originated during his service or was otherwise related or attributable to his service, including to exposure to herbicides. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for peripheral neuropathy of the right lower extremity. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from April 1967 to September 1969. He died in January 2018; the appellant is his surviving spouse, so widow. Service connection for peripheral neuropathy of the right lower extremity is denied. In his pleadings prior to his unfortunate death, the Veteran contended that his right lower extremity peripheral neuropathy was due to his military service, including owing to exposure to herbicides (the dioxin in Agent Orange). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 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 an injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases including organic diseases of the nervous system, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service or if they manifested to a compensable degree within a presumptive period following separation from service or if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). There also are other presumptions worth noting. A Veteran is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975 (during the Vietnam War era), unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA regulations also provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service, even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). The diseases listed in 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and "early-onset" peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). In this case at hand, there is no disputing the Veteran had the requisite service in Vietnam during the Vietnam era to, in turn, warrant presuming he was exposed to herbicides while there. The Veteran also had a diagnosis of peripheral neuropathy of his right lower extremity, as evidenced by his VA treatment records. That said, it is not shown the Veteran had "early-onset" peripheral neuropathy, meaning the type of peripheral neuropathy specifically contemplated by VA regulation as being the presumptive result of his presumed exposure to Agent Orange in Vietnam. To reiterate, the governing VA regulation expressly states that, to be considered a presumptive condition, the peripheral neuropathy must be "early onset" meaning it must have manifested to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during his active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). And that clearly did not occur here. Instead, the Veteran's right lower extremity peripheral neuropathy was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. In this regard, the Board has considered his April 1967 service treatment record (STR) and September 1969 military separation examination during which he answered 'yes' to the question of whether he experienced 'cramps in your legs,' but finds they are not indicative of peripheral neuropathy in service. Significantly, these records were reviewed by a VA examiner in March 2021 who concluded those responses were not evidence of peripheral neuropathy in service. This examiner found it significant that no neuritis was found during either of those examinations, and that, more generally, there was no indication of neuropathic symptoms in service. Because the Veteran had reported cramps in his legs on entrance and separation from service, so even before being presumptively exposed to Agent Orange in Vietnam, it was likely related to a pre-existing condition. There was no indication his symptoms were aggravated by his service. Moreover, the evidence collectively did not show actual neuropathic symptoms in service or even for many years following his separation from service. The examiner additionally found it significant that there was no evidence of neuropathic symptoms even on neurological examination in 1984, more than a decade following the Veteran's separation from service. That VA examiner's medical opinion against the claim has a lot of probative weight since it considered the relevant history and provided the required explanation for disassociating the peripheral neuropathy of the Veteran's right lower extremity from his service. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). As that VA pointed out, the post-service treatment records show the Veteran was first diagnosed with peripheral neuropathy many decades following his service, in August 2013. And, as that VA examiner also surmised, the diagnosis of peripheral neuropathy appeared to be related instead to the Veteran's spine disability rather than to any other cause, to include his pre-diabetes noted in 2003. This conclusion was based upon a thorough review of his relevant clinical history, including as documented in his VA treatment records. The evidence does not tend to support finding that the Veteran's right lower extremity peripheral neuropathy originated during his service, within a year of his discharge or within the time period prescribed for "early onset" peripheral neuropathy, especially, or that it was otherwise related or attributable to his service, again, including even to his presumed exposure to Agent Orange in Vietnam. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). While the Veteran and his widow are competent to report him having experienced symptoms of numbness and tingling in his right lower extremity since his service, they are not competent to ascribe his symptoms to a particular diagnosis or provide probative opinion on whether he had "early-onset" peripheral neuropathy (versus some other type of peripheral neuropathy). These critical determinations are beyond their lay competence since this issue is medically complex, not merely simple. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that these symptoms were unrelated to the Veteran's service. The Board notes that the March 2021 VA examination is entirely consistent with the record, to include with a previously obtained VA examination in July 2020 also finding it unlikely the Veteran had early-onset peripheral neuropathy or even diabetic peripheral neuropathy related to the demonstrated pre-diabetes that diminished following changes to his diet. Diabetes also is a condition presumptively associated with exposure to Agent Orange, hence, the reason for also considering the complication of diabetic peripheral neuropathy. But, ultimately, both examiners found that it less likely than not the Veteran's peripheral neuropathy of his right lower extremity was attributable to his service. The Board consequently finds that the preponderance of the evidence is against the claim for service connection for peripheral neuropathy of the right lower extremity; therefore, service connection for this disease is denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.