Citation Nr: 23061395 Decision Date: 11/16/23 Archive Date: 11/16/23 DOCKET NO. 16-32 971 DATE: November 16, 2023 ORDER Entitlement to service connection for right upper extremity peripheral neuropathy, to include chronic inflammatory demyelinating polyneuropathy (CIDP), is denied. Entitlement to service connection for left upper extremity peripheral neuropathy, to include CIDP, is denied. Entitlement to service connection for right lower extremity peripheral neuropathy, to include CIDP, is denied. Entitlement to service connection for left lower extremity peripheral neuropathy, to include CIDP, is denied. FINDING OF FACT 1. The evidence supports a finding against service connection for peripheral neuropathy of the right upper extremity, left upper extremity, right lower extremity, and left lower extremity, to include as due to conceded Agent Orange Exposure, and, therefore, there is no benefit of the doubt to resolve in the Veteran's favor. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right upper extremity peripheral neuropathy, to include CIDP, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for left upper extremity peripheral neuropathy, to include CIDP, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for right lower extremity peripheral neuropathy, to include CIDP, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. The criteria for entitlement to service connection for left lower extremity peripheral neuropathy, to include CIDP, have not been 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 CONCLUSIONS The Veteran served on active duty from June 1966 to March 1970. These matters first came to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO). The Board recently remanded this claim in March 2023 for additional development consistent with the terms of the parties November 2022 Joint Motion for Remand (JMR). A detailed procedural history is discussed within the March 2023 remand and is incorporated by reference herein. As will be discussed in more detail below, the Board finds substantial compliance with the terms of the March 2023 remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Generally, 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). Veterans who, during active 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. If a Veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service, the Veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(e). Here, the Veteran has conceded agent orange exposure based on his service in the Republic of Vietnam including receipt of a Vietnam Service Medal and Vietnam Campaign Medal. Relevantly, the list of diseases associated with exposure to certain herbicide agents includes early onset peripheral neuropathy. 38 C.F.R. § 3.309(e). While the Board is cognizant that only early onset peripheral neuropathy is presumptively associated with herbicide exposure, even if a disease is not included on the list of presumptive diseases, a nexus can still be established based on direct service connection. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009); Combee v. Brown, 34 F.3d 1039 (1994). In rendering this decision, the Board has reviewed all evidence of record whether discussed in detail. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (holding the Board must only discuss the evidence which is relevant to the issues on appeal). To the extent the evidence is found in "approximate balance," the Board will afford the benefit of the doubt in favor of the Veteran. Lynch v. McDonough, 21 F. 4th 776 (Fed, Cir. 2021) (holding that exact equipoise is not required for the benefit of the doubt to be applied, but rather the Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal"). 1. Entitlement to service connection for right upper extremity peripheral neuropathy, to include CIDP, is denied. 2. Entitlement to service connection for left upper extremity peripheral neuropathy, to include CIDP, is denied. 3. Entitlement to service connection for right lower extremity peripheral neuropathy, to include CIDP, is denied. 4. Entitlement to service connection for left lower extremity peripheral neuropathy, to include CIDP, is denied. The Veteran contends he has bilateral upper and lower extremity peripheral neuropathies, including CIDP, due to service, to include conceded Agent Orange exposure. As will be discussed in more detail below, the Board finds the persuasive weight of the evidence is against finding that the Veteran's upper and lower extremity peripheral neuropathies are related to service; therefore, service connection is not warranted. Turning to the relevant evidence of record, upon entrance to service, his upper and lower extremities were clinically evaluated as normal. In the corresponding report of medical history, he declined experiencing any symptoms related to upper or lower extremity peripheral neuropathy. Service treatment records (STRs) lack any mention of complaints related to, diagnosis of, or treatment of upper or lower extremity peripheral neuropathy. At separation, his upper and lower extremities were again clinically evaluated as normal. Decades after separation from service, in 2009, the Veteran endorsed increasing neuropathy over the past 1.5 years prompting a nerve conduction study. The Veteran was noted to have rapid and progressive polyneuropathy based on the nerve conduction study. At the time, the provider was concerned that it was related to the Veteran's monoclonal gammopathy. Later in the same month, the same provider explained, based on additional testing, that he believed the Veteran had CIDP. In January 2010, treatment records note complaints of numbness and tingling in the feet about a year and a half ago. He endorsed "significantly deteriorated" walking since March 2009. The Veteran then started to complain of numbness and tingling in the hands several months ago. Following a 2009 EMG revealing significant nerve conduction velocity, the Veteran was worked up for neuropathy. The provider noted that the Veteran's electrodiagnostic findings are consistent with severe sensorimotor polyneuropathy in both upper and lower extremities. In February 2010, a treatment record notes that the Veteran requested a letter that his peripheral neuropathies are "caused by Agent Orange exposure since there is no other etiology." The provider opined, however, that he could not say that the Veteran's condition was caused by Agent Orange. A nonVA provider stated in February 2010 that the Veteran has CIDP. The provider opined that since CIDP is of unknown origin and since it has been documented by the VA that patients with Agent Orange exposure have numbness and tingling and loss of sensation in the extremities, "I cannot exclude the possibility of this being Agent Orange related." In the same month, the provider noted that the Veteran had a confirmed diagnosis of CIDP. In February 2010, the Veteran was afforded an Agent Orange Protocol VA Examination. The Veteran stated during the examination that this lower extremity symptoms started 1.5 years ago and gradually involved the upper extremities. The examiner opined that he his unexplained peripheral neuropathy is as likely as not, 50 percent chance probability, due to possible Agent Orange Exposure in the past. The Veteran was afforded a VA examination in May 2010 during which he was noted to have a diagnosis of upper and lower extremity polyneuropathy secondary to CIDP. An etiology opinion was not rendered regarding CIDP. Rather, the examiner opined the etiology of the peripheral nerve disease is CIDP. In October 2010, a buddy statement was added to the record from an acquaintance of nearly twenty years. The individual explained that "in the last several years" she has witnessed the Veteran experienced problems with numbness in his feet that has spread to the hands. In May 2012, the Veteran was afforded a VA examination wherein the examiner noted a diagnosis of CIDP with bilateral upper and lower extremity peripheral neuropathy. The examiner, however, did not render an opinion addressing the nature and etiology of these diagnoses. In 2015, the Veteran's spouse submitted a statement explaining that they have been together since 1988. At that time, "he would have leg and foot cramps" especially at night. She explained that they have "learned this was probably signs of peripheral neuropathies." The Veteran submitted a statement in 2015 explaining that he first noticed leg cramping in the late 1970s and early 1980s. He then reported experiencing tingling in his toes in 2006 that continued for a year or so. By 2009, the Veteran reported that his feet and lower thighs were affected. He endorsed loss of strength in the upper and lower extremities by 2009. In March 2015, the Veteran's treating neurologist submitted a statement that he has polyneuropathy with CIDP and explained his symptoms and functional impairments related thereto. An opinion regarding the etiology of these diagnoses was not provided. The same nonVA provider submitted another statement in September 2015 that the Veteran has peripheral neuropathy of an unknown etiology. He explained that a possible contributing factor to his diagnosis could be Agent Orange exposure. A VA examiner opined in September 2021 that it was less likely than not the Veteran's bilateral upper and lower extremity peripheral neuropathy, to include CIDP, was related to service, to include Agent Orange exposure. The examiner reasoned that the Veteran's diagnosis of CIDP had its onset in about 2008 or 2009. The examiner explained that CIDP is an immune-mediated neuropathy affecting the peripheral nerves and roots, so it is less likely as not due to toxic substances such as Agent Orange or other herbicides used in Vietnam. CIPD was explained to be among the varied causes of polyneuropathy. The examiner explained that the medical literature considers early-onset neuropathy as occurring within one year after external exposure to toxic substances ends. Early-onset peripheral neuropathy is not necessarily a transient condition, he noted, and may become chronic. The Veteran's condition, he observed, had its onset in 2008 or 2009, some 38 or 39 years after separation and 40 years after his last possible exposure to herbicide agents. After reviewing the results of multiple studies of possible delayed-onset chronic neuropathy in Korean and Vietnam War veterans, the examiner explained that the medical literature supports the conclusion that there is inadequate or insufficient evidence to determine there is an association between exposure to toxic substances and delayed-onset chronic neuropathy. The Veteran testified in May 2021 that he first felt the effects of neuropathy in his upper and lower extremities "as early as around 2000, maybe a little bit earlier." He then explained that he could not remember exactly the date, but it had to have been "at least 15, 20 years ago." Another VA opinion was obtained in August 2023 following the Board's most recent March 2023 remand. The examiner opined that the Veteran's bilateral upper and lower extremity peripheral neuropathies are less likely than not related to service. The examiner reasoned that the Veteran was diagnosed with these conditions nearly four decades after separation from service. The examiner explained that the Veteran's diagnoses had a more recent onset given the timeline and progression. He explained that the Veteran's contention of leg cramping as an early sign of his current disability could not be farther from the facts. The examiner explained that an earlier sign of neuropathy is never cramping, and this contention is not supported by the medical evidence. The examiner explained that cramping in a smoker is multifactorial and that neuropathy is never considered in the differential diagnosis of cramping. Other plausible causes include dehydration, and electrolyte and endocrine imbalances. The examiner noted that cramping was never noted in the Veteran's neurology treatment records or the Veteran's primary care provider notes. The examiner went on to explained that there was no medical evidence of neuropathy until the Veteran was diagnosed. While leg cramping may have been experienced, the two are not causally related as cramping is multifactorial and not pathognomic or characteristic of neuropathy. The examiner further explained that no specific signature distinguishes a toxicant-related neuropathy from one induced by other causes. As many as 30% of neuropathies are "idiopathic." That is, no etiology is determine despite exhaustive clinical evaluation. The examiner explained that he considered the Veteran's hearing testimony, claim, and all of the previous opinions of record. His symptoms as described from 1968 are more consistent with a non-neuropathy pathology considering that he was / is a smoker with a variety of co-morbidities. Based on the above, the Board finds the evidence persuasively weighs against service connection for upper and lower extremity peripheral neuropathies with CIDP. It is not reasonably in dispute that the Veteran has a diagnosis of bilateral upper and lower extremity peripheral neuropathy with CIDP as evidenced by his diagnosis in 2009. The Board is cognizant of the presumption for "early-onset" peripheral neuropathy but finds it is not applicable here. That is, the disability was not shown as chronic in service and did not manifest to a compensable degree within a presumptive period. Indeed, he was not diagnosed with bilateral upper and lower extremity peripheral neuropathy with CIDP until 2009, multiple decades after service. Notably, the Veteran has never contended, nor does the record suggest, that he had a diagnosis of "early-onset" peripheral neuropathy. Moreover, within the parties' JMR, no contentions were raised that the Veteran had "early-onset" peripheral neuropathy. Service connection for bilateral upper and lower extremity peripheral neuropathy with CIDP may still be granted on a direct basis; however, the evidence of record persuasively weighs against finding that a medical nexus exists between the Veteran's bilateral upper and lower extremity peripheral neuropathy with CIDP and his conceded Agent Orange exposure. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. To this point, the Board notes the record contains a September 2021 and August 2023 VA opinion. The parties previously agreed within the JMR that the September 2021 VA examiner failed to address and consider the lay statements of record regarding onset of symptoms, including the Veteran's report of leg cramps or his wife's statement. The Board then remanded these claims to obtain a VA opinion specifically addressing these lay statements of record and the contention that the Veteran's reports of leg cramps were early signs of his peripheral neuropathy. The Board finds not only has there been substantial compliance with the Board's March 2023 remand directives, but also that the record contains an adequate VA opinion to resolve these claims, especially when considering the September 2021 and August 2023 VA opinions together. An adequate medical opinion must be based upon a consideration of the relevant evidence and must provide the Board with a foundation sufficient enough to evaluate the probative worth of that opinion. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994). This requires the examiner to not only render a clear conclusion on the relevant medical question but to support that conclusion "with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion"). See also Nieves-Rodriguez, 22 Vet. App. at 301 (examiner must provide "not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). But this obligation is not insurmountable, and an examination report need not "explicitly lay out the examiner's journey from facts to a conclusion." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (holding that a medical examination report must be read as a whole and does not require that it "explicitly lay out the examiner's journey from the facts to a conclusion"). Here, the lay statements and contentions of record have now been addressed and considered as well as the Veteran's military history, medical history, and various opinions of record. Indeed, the August 2023 VA examiner specifically explained that he considered the Veteran's lay statements and testimony, the claim, and the various opinions of record. The examiner specifically addressed the Veteran's contention that leg cramping could have been an early sign of his current disability, but opined, with a rationale in support thereof, that was not the case. The Board finds this opinion to be probative. While the examiner did not specifically list or discuss the Veteran's wife's statement that the Veteran had leg and foot cramps when they were together in 1988, the examiner did address this specific contention when he explained that leg cramping is not a symptom of neuropathy. See Monzingo, 26 Vet. App. at 106 (holding that a medical examination report must be read as a whole and does not require that it "explicitly lay out the examiner's journey from the facts to a conclusion"). The Board finds probative the examiner's rationale that leg cramping is not an early sign of neuropathy as it is not supported by medical evidence but rather, cramping is multifactorial and could have been caused by other things. The Board also finds significant, as mentioned by the 2023 VA examiner, that leg cramping was never a symptom presented in 2008, 2009, or 2010 when the Veteran was first being diagnosed with these disabilities, further corroborating the 2023 VA examiner's opinion that leg cramping is not a symptom of neuropathy. While the Veteran is competent to endorse leg cramping, the Board finds he is not competent to attribute said leg cramping to his current disability or render a nexus opinion related thereto as these questions are medically complex and require specialized medical knowledge and training. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, the Board relies upon the competent and probative medical evidence of record, namely the 2023 VA opinion of record. The Board acknowledges that the Veteran's treating neurologist has repeatedly offered his opinion that he could not exclude the possibility that the Veteran's current disabilities are related to Agent Orange exposure, or that said exposure is a possible contributing factor. These opinions are not adequate to resolve these claims, however, because not only did the neurologist fail to ever offer a rationale in support of his statements, he also never explicitly drew a connection between the Veteran's conditions and his exposure to herbicide agents, couching his opinion in vague terms of "could be," "might be," and "cannot exclude." See Stefl, 21 Vet. App. at 124-25 (the Board may reject a medical opinion that is conclusory and lacks supporting analysis); see also Polovick, 23 Vet. App. at 54 (holding that doctor's statement that veteran's brain tumor "may well be" connected to Agent Orange exposure was speculative"); Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term "could," without additional rationale or supporting data, is speculative); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (noting that the use of the phrase "could not rule out" was too speculative). Similarly, while the February 2010 VA examiner opined that the Veteran's unexplained peripheral neuropathy was "as likely as not 50% chance probability due to possible Agent Orange exposure in the past," a rationale in support was not offered. As such, this opinion is not adequate to resolve these claims. See Stefl, 21 Vet. App. at 124-2 (the Board may reject a medical opinion that is conclusory and lacks supporting analysis); Horn v. Shinseki, 25 Vet. App. 231, 240-42 (2012) (stating that under caselaw "an unexplained conclusory opinion is entitled to no weight in a service-connection context"). The Board also finds significant the examiner did not reference a review the claims file or reconcile the fact that the Veteran was not diagnosed with these disabilities until multiple decades after separation from service. For these reasons, the February 2010 VA opinion is insufficient to resolve this claim. The Board instead relies upon the probative September 2021 and August 2023 VA opinions. (Continued on the next page) ? Accordingly, the evidence is persuasively against the claims. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for bilateral upper and lower extremity peripheral neuropathies, to include CIDP, is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.