Citation Nr: 23016445 Decision Date: 03/17/23 Archive Date: 03/17/23 DOCKET NO. 20-07 729 DATE: March 17, 2023 ORDER Entitlement to service connection for peripheral neuropathy right lower extremity (RLE), to include as due to herbicide exposure is denied. Entitlement to service connection for peripheral neuropathy left lower extremity (LLE), to include as due to herbicide exposure is denied. FINDINGS OF FACT 1. The Veteran's peripheral neuropathy of the RLE did not have onset during active duty, did not manifest within one year of separation from active duty, and is not otherwise etiologically related to or caused by active duty, to include as due to herbicide exposure. 2. The Veteran's peripheral neuropathy of the LLE did not have onset during active duty, did not manifest within one year of separation from active duty, and is not otherwise etiologically related to or caused by active duty, to include as due to herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy RLE, to include as due to herbicide exposure have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 5103, 5103A, 5107; 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for peripheral neuropathy LLE, to include as due to herbicide exposure have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 5103, 5103A, 5107; 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Army from January 1968 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a video conference Board hearing in August 2021. A transcript of the proceeding has been associated with the claims file. In October 2022, the Board remanded the issues on appeal for further development, and the case has since been returned to the Board. The Board finds that the agency of original jurisdiction (AOJ) has substantially complied with prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service in the line of duty. 38 U.S.C. §§ 1110, 1131; 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 ("nexus") between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Entitlement to service connection for peripheral neuropathy RLE, to include as due to herbicide exposure Entitlement to service connection for peripheral neuropathy LLE, to include as due to herbicide exposure The Veteran contends that his bilateral LE peripheral neuropathy is due to his active service, to include herbicide exposure. The Veteran has confirmed service in the Korean DMZ during the qualifying period, therefore herbicide exposure is conceded. He has suggested that presumptive service connection is warranted. The Board, however, notes that the disorders shown in the Veteran's records are not among those listed within 38 C.F.R. § 3.309 (e) for which presumptive service connection is warranted. Specifically, while the March 2018 Agent Orange Registry Evaluation found that the Veteran was positive for lower extremity bilateral peripheral neuropathy, the evaluator stated that they were unable to consider whether or not his diagnosis was "early onset" neuropathy related to Agent Orange exposure without reviewing his complete private health records. However, even if a Veteran is not entitled to presumptive service connection, VA also must consider the claim on a direct service-connection basis. When a disease is diagnosed initially after service but not within the applicable presumptive period, service connection nonetheless may be established by evidence demonstrating that the disease was incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service treatment records (STRs) are silent for any complaints, diagnosis, or treatment of any peripheral neuropathy condition. A November 2017 EMG report from Stamford Health Medical Group received in April 2018 revealed severe sensorimotor neuropathy with superimposed left L5 and left S1 radiculopathies. A March 2018 Agency Orange Health Registry Evaluation note indicates a diagnosis of lower extremity bilateral peripheral neuropathy, however, the evaluator stated that they were unable to consider whether or not his diagnosis was "early onset" neuropathy related to Agent Orange exposure without reviewing his complete private health records. In an August 2021 Board hearing, the Veteran testified that his neuropathy was due to Agent Orange exposure while based in the Korea DMX from 1968 to 1969. In November 2022, as required by a October 2022 Board remand, the Veteran attended a VA Peripheral Nerve Conditions examination. The examiner diagnosed bilateral peripheral neuropathy with a "2017" date of diagnosis and onset of "2016". The examiner opined that the Veteran's condition was at least as likely as not related to the conceded in-service exposure to herbicide agents. The rationale provided was: Veteran had no issues related to the claim prior to military service. Current diagnosis of bilateral peripheral neuropathy is related to the conceded in-service exposure to herbicide agents. There is evidence of chronicity and a nexus has been established. According to the VA, peripheral neuropathy conditions are presumptive to AO exposure for those veterans during the Vietnam War which also includes those Veteran near DMZ in Korea between 1967-1971. The veteran was Active from 1968-1969. Per the Judge's remand order,..."The Veteran's private treatment records include a November 2017 EMG Report where electrodiagnostic studies revealed a severe sensorimotor neuropathy with superimposed left L5 and left S1 radiculopathies. Subsequently, as previously noted the March 2018 Agent Orange Health Registry Evaluation found the Veteran "positive" for lower extremity bilateral peripheral neuropathy. Thus, the Veteran has diagnosed bilateral neuropathy conditions. The veteran has claimed (a) peripheral neuropathy, bilateral lower extremity as being directly related to military service. Based on review of the available evidence, it is less likely than not that the claimed condition is due to incurred in or caused by (the) peripheral neuropathy, bilateral lower extremity during service. Although the veteran does have a diagnosis of bilateral peripheral neuropathy of LE and has served near the DMZ in Korea during the Vietnam War, the condition was not diagnosed while he was in service and therefore, the diagnosed condition of bilateral peripheral neuropathy is less likely than not incurred in or caused by peripheral neuropathy -bilateral lower extremities during service..." https://www.publichealth.va.gov/exposures/agentorange/locations/index.asp In a December 2022 VA clarifying addendum opinion, the examiner indicated that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was: Veteran has claimed peripheral neuropathy, bilateral lower extremity as being directly related to military service. Based on review of the available evidence, it is less likely than not that the claimed condition is due to service as there is no data supporting a nexus between the current diagnosis of peripheral neuropathy, bilateral lower extremity and military service. Without chronicity during service or after service, a post-service event, illness, or injury is considered to be a more likely etiology. Veteran discharged in 1969, onset of neuropathy was in 2016; this is forty-seven years post service. The examiner also opined that the Veteran's claimed bilateral peripheral neuropathy was less likely than not related to the conceded in-service exposure to herbicide agents. The rationale provided was: Veteran has claimed peripheral neuropathy, bilateral lower extremity as being directly related to exposure to herbicide agents. Based on review of the available evidence, it is less likely than not that the claimed condition is due to agent orange/herbicide agents as the current diagnosis of peripheral neuropathy, bilateral lower extremity onset was in 2016, forty-seven years post service. The remaining evidence of record is silent for any further discussion on the etiology of the Veteran's bilateral peripheral neuropathy. Based on the foregoing evidence of record, the Board finds that service connection is not warranted. The Board assigns high probative value to the December 2022 VA medical addendum opinion, which were demonstrably fully informed of the pertinent factual premises of the case and provided a fully articulated opinion with supporting reasoned analysis explaining why the Veteran's current bilateral peripheral neuropathy is less likely than not related to his military service, or in-service herbicide exposure. See Nieves-Rodriguez, 22 Vet. App. at 303-304. The Board recognizes that the Veteran believes his bilateral peripheral neuropathy is related to an in-service injury, event, or disease, to include herbicide exposure. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 ; see also Kahana, 24. Vet. App. at 428. Based on the foregoing, the claim of entitlement to service condition for peripheral neuropathy of the right lower extremity and peripheral neuropathy of the left lower extremity is denied. The evidence persuasively favors against the Veteran's claims; thus, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. A. Elliott II, 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.