Citation Nr: 21041430 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-36 476 DATE: July 9, 2021 ORDER Entitlement to service connection for peripheral neuropathy in the bilateral lower extremities, to include as due to exposure to herbicides, is denied. Entitlement to service connection for peripheral neuropathy in the bilateral upper extremities, to include as due to exposure to herbicides, is denied. FINDING OF FACT The Veteran's peripheral neuropathy of all four extremities did not manifest in service or within one year thereafter; and are not related to his active service, including his conceded herbicide exposure or are otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria have not been met for service connection for bilateral lower extremity peripheral neuropathy, to include as due to herbicide (Agent Orange) exposure. 38 U.S.C. §§ 1101, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313. 2. The criteria have not been met for service connection for bilateral upper extremity peripheral neuropathy, to include as due to herbicide (Agent Orange) exposure. 38 U.S.C. §§ 1101, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from July 1966 to August 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. As a threshold matter, the Board notes that the Veteran's military personnel records show that he received multiple awards for his service, including the Purple Heart; Marine Commendation Medal (MARCOM); a Bronze Star Vietnam Service Medal; a Presidential Unit Citation Ribbon; and a Combat Action Ribbon. His records also provide his combat history in Vietnam from November 1967 to September 1968. As such, exposure to herbicide agents is conceded. In June 2020, the Board remanded the appeal for further development, to include VA medical records, private medical records, and to obtain a new VA medical opinion from a neurologist. This case has since been returned to the Board for appellate review, after the AOJ substantially complied with the Board's remand order for the majority of the issues on appeal to the extent possible. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, while the VA medical records beginning in 1999 to present were obtained and associated with the file, and the requested medical opinion appears adequate, the Veteran did not reply to the post-remand development letter dated July 2020, asking him to provide any outstanding private treatment records which might support his claim, or a completed authorization for VA to obtain the records. As of this date, the Veteran has failed to reply to that request. As discussed in Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), "[t]he duty to assist is not always a one-way street" and if the Veteran desires help with his claims, he must cooperate with VA's efforts to assist him. Further, the Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of the Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). The Veteran contends his neuropathy of the bilateral upper and lower extremities is due to his military service, including as a chronic disease or due to his presumed exposure to herbicide agents. Alternatively, the Veteran contends that his peripheral neuropathy is due to the shrapnel wounds he sustained during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 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). Certain diseases, including organic disease of the nervous system may be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a year after the Veteran's separation from service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, a veteran who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 (Vietnam era) will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Early onset peripheral neuropathy is presumed service connected if manifested to a degree of 10 percent or more within one year following the last exposure to herbicide agent in service. See 38 C.F.R. § 3.307. Furthermore, in determining whether service connection is warranted for a disability, 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. See 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 of matter, the benefit of the doubt will be given to the Veteran. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. First, the AOJ favorably found that the Veteran has a current diagnosis of peripheral neuropathy of his bilateral lower and upper extremities. Next, as noted above, a review of the Veteran's records shows that he had qualifying service in Vietnam and is presumed to have been exposed to an herbicide agent, to include Agent Orange. However, following separation from service in 1969, the Veteran was afforded a VA examination conducted later that year in December 1969, which did not indicate any complaints relating to peripheral neuropathy, nor were there any clinical findings suggesting the presence of this condition. There are no further medical records indicating symptoms or reports of neuropathy in any extremity until 2002. Specifically, in September 2002, the Veteran related that he had developed some numbness in the right side of his face two weeks earlier. In December 2002, he noted additional numbness in his tongue and right leg. In the February 2003 PTSD VA examination, he reported "the right side of my whole face has been numb for the past six months. I wonder if this is related to this (to Agent Orange)." In 2003, he was diagnosed with right trigeminal mononeuropathy. The Veteran himself testified during the 2020 Board hearing that he did not notice the condition until around 2005 or so. The Board acknowledges that there is no presumption of service connection for delayed-onset peripheral neuropathy due to exposure to herbicide agents. Still, the Veteran still may be entitled to service connection on a direct basis. In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide agent exposure. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, upon review of all the evidence of record, both lay and medical, the Board finds that the preponderance of the evidence is against finding that the Veteran's bilateral lower and bilateral upper extremity peripheral neuropathy is due to his military service, to include as due to exposure to herbicide agents and/or due to the shrapnel wounds he sustained in service. In the August 2016 VA examination, the diagnosis for bilateral lower extremity neuropathy was confirmed, and the examiner noted the approximate date of onset was 2009. The Veteran reported that the disability began when he started stumbling and his family started noticing it, and he has since been seen at VA and been given EMG tests. EMG test results revealed neuropathy throughout his body. The Board considered the Veteran's medical treatment records from the VA Medical Center, which showed he has continued to receive ongoing treatment and medication for his neuropathy. For example, in September 2002, he reported right sided facial numbness for the last two weeks and he was referred to neurology. In January 2003, he had a neurology consultation which was negative, and diagnosed with right trigeminal mononeuropathy of uncertain etiology affecting all distributions on examination. An MRI was ordered to rule out a mass, and in March 2003, the MRI was essentially normal. In July 2003, he reported occasional numbness of his tongue. He had had a neurology consultation and MRI which were negative. No diagnosis of any neurological condition was rendered. There were no complaints of or treatment for peripheral neuropathy between July 2003 and August 2015, when he was then referred for evaluation for his neuropathy. During the August 2015 evaluation, the Veteran stated that he thought the numbness in the tips of his toes started about a year earlier, but he did not pay much attention to it until he started falling in the spring of 2015. He last fell in May 2015 and stated that he lost his balance and could not steady himself. His legs occasionally felt like they were buckling at the knees, but he did not have any focal weakness. He did not notice his feet dragging and did not catch them on stairs or curbs. He had also noticed that his fingers felt stiff and a little numb over the past month or so. He thought that his pedal numbness had spread in his feet since his last EMG/NCS. On neurological examination, strength was normal throughout. Sensation was decreased in the soles of the feet. Deep tendon reflexes were normal proximally and decreased slightly in all 4 extremities. It was otherwise normal with the exception that he might have some weakness in standing on his toes. He was diagnosed with slowly progressive numbness and burning pain in the feet with two falls in the past six months. His neurological examination was noted as benign at that time with only mild distal weakness in the lower extremities and sensory deficits from the ankles down. His gait was largely normal. An EMG was ordered. The 2015 EMG result revealed suspicion for chronic inflammatory demyelinating polyneuropathy (CIDP), but it was noted his symptoms were somewhat atypical for CIDP as it was sensory predominant with minimal motor findings. Additionally, it would have been expected to have more progression over the past year. The examiner stated that "it was possible that the Veteran had an IgM gammopathy leading to the most common cause of monoclonal gammopathy associated with neuropathy." In January 2016, the Veteran discussed his neuropathy and wondered if it was due to Agent Orange, but the examiner noted there was unknown origin and he also was diagnosed with monoclonal gammopathy. He reported first noticing the neuropathy about two years ago after several falls. Workup and bone survey during the examination revealed monoclonal gammopathy consistent with MGUS, but it was noted to be unlikely the cause of the peripheral neuropathy. Th examiner also stated: "neuropathy is discussed and his exposure to Agent Orange could be the culprit but there is NO proof." Further, later that month, following another EMG, Dr. A.C. stated that the Veteran's "repeat EMG is consistent with a polyneuropathy, most likely related to his IgM gammopathy" (emphasis added). The Veteran reported to the primary care clinic in May 2016 and described his chronic pain which was noted to be from peripheral neuropathy of unknown etiology with an extensive exposure to Agent Orange in Vietnam. The examiner noted he also had a history of monoclonal gammopathy with a hematology recommendation of annual SPEP. On neurological examination, the Veteran's strength was normal, and deep tendon reflexes were slightly abnormal, and no sensory examination was performed. Diagnoses included peripheral neuropathy and monoclonal gammopathy. A treatment report dated October 2016 shows that Dr. E.R. noted that causes of neuropathy were discussed, and he opined that there was a good chance that it was caused by Agent Orange exposure, and in February 2017, Dr. E. R. again stated that the peripheral neuropathy is most likely due to Agent Orange as no other etiology was noted. In February 2017, the Veteran's wife reported that she has observed that his balance impairment had increased over the prior several months and he has to hold on to walls and furniture to walk to the bathroom in the morning. He was noted to be using a cane, and a walker was recommended for use at home during exacerbations, but he declined. He also reported increased symptoms of pain and numbness and reported pain in both upper extremities caused by his shoulder impingement. In February 2020, the Veteran and his daughter provided sworn testimony, where the Veteran stated he was unsure if the neuropathy began in service, but he did not receive medical care. He stated that he first noticed around 2005 that he began to stumble and noticed his toes were numb. His daughter stated: he also had an issue prior to that with facial numbness and she remembers him stumbling in the early 2000's. She also stated they had a panel of doctors from OHSU trying to figure that out as well. However, as noted above, the Veteran failed to respond to a request for these private records. The Veteran also submitted a statement in March 2020 from Dr. E.R. He stated that the Veteran had been under his care since 2015 and that he suffers from severe inflammatory polyneuropathy sensorimotor, predominately demyelinating, of unknown cause, which was diagnosed in October 2015. Dr. E.R. also stated that the Veteran had been evaluated by Neurology and Hematology in 2014, and no cause was found, and it was determined that MGUS was not the cause of his neuropathy. Dr. E.R. therefore opined that it was his "professional opinion that it is least likely as not the condition is from his exposure to Agent Orange." However, as noted in the 2020 Board decision, this opinion is not fully adequate as it is conclusory that the conditions were caused by Agent Orange simply because there was not another cause found. When the Board relies upon a medical opinion, that opinion must be considered adequate as the opinion must "support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As part of the 2020 Board remand, a VA medical opinion from a neurologist was requested. The examiner provided a thorough overview discussion of the relevant evidence as well as a detailed medical opinion. Specifically, the examiner noted that the Veteran complained of the onset of facial numbness in September 2002 and was seen in January 2003 and stated that the numbness had been present since July 2002 but denied all other neurological symptoms including those of peripheral neuropathy. Brain MRI showed a normal brain and he was diagnosed with a right trigeminal mononeuropathy of uncertain etiology. The examiner stated, though, that "interestingly, when he returned to neurological attention in 2015, no facial numbness was ever seen on neurological examination." The examiner also pointed out, as discussed above, that the Veteran did not receive treatment for or report any symptoms of neuropathy until 2015, when he stated symptoms had been present for about a year, but he did not pay much attention until he started falling in the spring of 2015...and the examiner stated that "the Veteran and his daughter have testified that symptoms started much earlier, perhaps as early as the mid-1990s. I have no doubt that they are testifying as to what they remember, but the objective evidence of record is not consistent with this memory." Further, the examiner noted that the Veteran was referred to hematology/oncology for further work up of the monoclonal gammopathy and "was determined to have IgM lambda monoclonal gammopathy of unclear significance (MGUS), which is well supported in the medical literature and the neurological medical literature in particular as being a cause of neuropathy." The examiner also discussed and discredited Dr. E.R.'s statements that Agent Orange exposure was likely the cause of the neuropathy as the cause was unknown. Specifically, the examiner stated: The Veteran's primary care provider either did not understand or did not read the neurology notes over the next few months in which it was discussed that the most likely etiology for the Veteran's peripheral neuropathy was MGUS. He also apparently did not understand the hematology consultation because the Veteran's annual SPEP has consistently increased over time and reached 0.3 g/d in 2017, 0.4 g/dL in 2018, and 0.5 g/dL in 2020. All this time, the Veteran's primary care provider has written in treatment notes that the etiology of the peripheral neuropathy is unknown and has repeated that the likelihood of progression of the MGUS was 1 percent per year, even when it was obviously progressing. Hematology has never been reconsulted about the progression of the Veteran's MGUS, and he continues to be told by his primary care provider that there is no known etiology of his peripheral neuropathy. This lack of understanding is further supported by the letter written by the primary care provider in March 2020. Importantly and persuasively, the examiner then provides alternative etiologies as to the Veteran's peripheral neuropathy based on the totality of the medical evidence and the Veteran's medical history: It is also seen from review of the evidence of record that the Veteran has two other potential etiologies for his peripheral neuropathy, namely that he is hypothyroid and that he has on numerous occasions had a vitamin B12 level that, although low normal, is well within the range of which the weight of the neurological medical literature encourages treatment to prevent the development of combined systems disease, which includes peripheral neuropathy. The weight of the medical literature supports that damaged peripheral nerves from any etiology are more susceptible to additional damage from other potential etiologies of neuropathy. Thus, the combination of three potential etiologies for peripheral neuropathy increases the possibility of clinically apparent peripheral neuropathy in a nonlinear fashion. The examiner considered the Veteran's contentions as to his neuropathy being due to Agent Orange but stated that "the weight of the medical literature supports that the natural progression of toxic exposure is for all symptoms to be present and at worst severity initially at the time of exposure. Symptoms rapidly decline in severity after the exposure is terminated. This is the natural progression of peripheral neuropathy due to exposure to herbicides such as Agent Orange." The examiner noted that there was no evidence in the record during service or following separation from service that he had neuropathy following Agent Orange exposure, and opined that "even if he had had peripheral neuropathy develop due to Agent Orange exposure, it would long since have become quiescent and clinically resolved." Finally, the examiner considered the contention as to the Veteran's shell fragments from his combat service and whether residuals from this injury may have caused the neuropathy. The examiner stated: The Veteran had a shell fragment wound to the skull in the occipital region from a combat injury. Imaging at that time clearly showed that the shrapnel fragment did not penetrate the skull and remained in the soft tissues outside it. The weight of the medical literature supports that in the absence of CNS (brain) involvement of the fragment wound, it would have no effect on neurological function. Furthermore, the pattern of the veteran's peripheral neuropathy and the EMG/NCS findings are not consistent with a brain lesion but rather pathology of the peripheral nerves themselves. Furthermore, even if any of the other shell fragment wounds had damaged peripheral nerves in the arms or legs, this would be consistent with a mononeuropathy of the affected nerve only and not the widespread pattern seen both clinically and by EMG/NCS studies. The shell fragment wounds are thus irrelevant to and incidental to the Veteran's condition. As such, the examiner opined that "it is less likely than not that the Veteran's condition of peripheral neuropathy of all four extremities was caused by or related to or permanently aggravated beyond the normal progression of the condition by exposure to Agent Orange while on active duty service or had its onset during service...[or] was caused by or related to or permanently aggravated beyond the normal progression of the condition by shell fragment wounds sustained while on active duty service or had its onset during service." Rather, the examiner opined that the neuropathy is more likely than not due to the combination of MGUS, which is slowly progressive, as well as the Veteran's hypothyroidism, and a low vitamin B12 level. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this case, as noted, the examiner was aware of the Veteran's medical history and provided a deep discussion of such, provided a fully articulated opinion with citation to medical literature, discussed the Veteran's testimony as well as the primary care doctor's statements, and furnished a reasoned analysis for the conclusions. The Board therefore attaches significant probative value to this opinion. While the Board recognizes the favorable evidence he has submitted, those statements are conclusory and not supported by any rationale, in contrast to the thorough VA opinion. That opinion also persuasively explained why the favorable statements were not in account with either medical principles as to the disease processes involved in this case or the Veteran's specific medical history/laboratory results. The Board also considered the Veteran's lay assertions as to the etiology of his peripheral neuropathy of the bilateral lower and bilateral upper extremities. Although the Veteran is competent to attest to his experiences, he is not competent in these circumstances to opine as to the medical etiology of his peripheral neuropathy, as he lacks medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, and 1376-77 (Fed. Cir. 2007). Consequently, the Board assigns low probative weight to the Veteran's lay statements regarding etiology. In summary, the preponderance of the evidence weighs against a finding that the Veteran's peripheral neuropathy is due to exposure to Agent Orange, is causally related to any other in-service event or injury, or is due to or aggravated by the in-service fragment wounds. Therefore, the benefit-of-the-doubt doctrine does not apply, and service connection on a direct or presumptive basis for neuropathy of the bilateral upper and bilateral lower extremities is not warranted. Gilbert, 1 Vet. App. 49. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.