Citation Nr: 23025294 Decision Date: 05/02/23 Archive Date: 05/02/23 DOCKET NO. 19-00 085A DATE: May 2, 2023 ORDER Service connection for a lumbar spine disability is denied. Service connection for a neurological disorder of the bilateral upper extremities, claimed as peripheral neuropathy, to include as due to in-service herbicide exposure, is denied. Service connection for a neurological disorder of the bilateral lower extremities, claimed as peripheral neuropathy, to include as due to in-service herbicide exposure, is denied. FINDINGS OF FACT 1. The Veteran does not have a lumbar spine disability that began during active service or within one year of separation or is otherwise related to service. 2. The Veteran's right and left upper and lower extremity peripheral neuropathies did not begin during active service or within one year of separation and are not otherwise related to an in-service injury or disease, to include as due to in-service herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for service connection for a neurological disorder of the bilateral upper extremities, claimed as peripheral neuropathy, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a neurological disorder of the bilateral lower extremities, claimed as peripheral neuropathy, are not met. 38 U.S.C. §§ 1110, 1131, 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 from February 1968 to February 1971, including service in the Republic of Vietnam during the Vietnam War. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision, which the Veteran timely appealed. In August 2019, the Board remanded the case for further development and adjudicative action. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A veteran, who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service "in the Republic of Vietnam" includes service both on the landmass of Vietnam and the waters that are no more than 12 miles offshore of Vietnam. 38 U.S.C. § 1116A(a). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes; Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). Moreover, the National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, amended 38 U.S.C. § 1116(a)(2) and added Parkinsonism, bladder cancer, and hypothyroidism as additional diseases which are presumed to be associated with exposure to herbicide agents (including Agent Orange). Although this law did not contain an effective date and has not yet been codified, in the absence of such guidance it must be presumed that the law became effective upon its January 1, 2021, enactment. See Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991) ("It is well established that, absent a clear direction by Congress to the contrary, a law takes effect on the date of its enactment"). 1. Entitlement to service connection for a lumbar spine disability The Veteran contends service connection is warranted for a lumbar spine disability. As set out in the August 2019 Board decision, the Veteran attended VA examinations in concert with the instant claim; however, the Board found that the opinions rendered were inadequate for adjudicative purposes, and another examination was ordered. Such an examination was conducted in December 2019. The December 2019 VA examiner reviewed the Veteran's service treatment records (STRs) and post-service treatment records, and conducted an in-person examination of the Veteran during which the Veteran was allowed to describe the onset and progression of back pain, including the in-service events/injuries to which he attributes his back troubles. The Veteran reported a longstanding history of low back pain, which he believed began while stationed in Vietnam and was required to carry heavy mortar rounds. The examiner opined that the Veteran's low back disorder was less likely than not related to service, to include as caused by or incurred therein. The rationale was as follows: First, this examiner found no definitive diagnosis of, treatment for, or [complaint of] a back condition in [the service treatment records]. While more than likely as not with heavy work with carrying mortar rounds one might at least as likely as not experience pain, there is no evidence of chronic pain in the initial years after discharge. MRI showing significant degeneration of the lumbar spine in 2015 is [more than] 40 years after discharge. Upon review, the Board affords probative value to the December 2019 opinion, as it was based on an in-person examination of the Veteran and reflects consideration of all relevant facts, specifically citing to service treatment records, post-service treatment records, and the Veteran's lay statements. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Notably, the record does not contain a medical opinion to the contrary. With the above in mind, the Board finds that the probative evidence weighs persuasively against finding that the Veteran has a back disorder that is, as likely as not, related to service. As there is no reasonable doubt to resolve in the Veteran's favor, the benefit of the doubt rule does not apply, and the claim must be denied. 2. Entitlement to service connection for neurological disorder of the bilateral upper extremities, claimed as peripheral neuropathy 3. Service connection for neurological disorder of the bilateral lower extremities, claimed as peripheral neuropathy The Veteran contends that he is entitled to service connection for peripheral neuropathy of the bilateral upper and lower extremities, as related to service; specifically, he contends that each disorder is related to in-service exposure to Agent Orange. Initially, and as conceded by the RO, the Veteran is presumed to have been exposed to Agent Orange during service as a result of his service in Vietnam. Private treatment records show diagnoses of idiopathic peripheral neuropathy affecting the hands and the feet. However, there is no evidence in the record that the peripheral neuropathy is early onset in nature; accordingly, service connection on a presumptive basis, as due to Agent Orange exposure, is not warranted. 38 U.S.C. § 1116(a)(2). Nonetheless, service connection may yet be warranted on a "direct" basis, should the evidence otherwise demonstrate that the peripheral neuropathies are related to service, including in-service Agent Orange exposure. Initially, and as set out in the August 2019 Board decision, the Veteran attended VA examinations, prior to the issuance of that decision, in concert with the instant claim. However, the Board found that the opinions rendered were inadequate for adjudicative purposes, and another examination was ordered. Thus, an additional examination was conducted in December 2019. The December 2019 VA examiner reviewed the Veteran's medical records, including the STRs, and performed a peripheral nerves examination during which the Veteran was asked to described the onset, nature, progression, and severity of the peripheral neuropathy affecting the bilateral lower and bilateral upper extremities. The examiner dictated the Veteran's report concerning the history of peripheral neuropathy as follows: [The Veteran] reports a long standing history of lower extremity numbness and paresthesias. Then began to experience the same sort of feelings in hands. However, the left upper extremity was worse than the right. He has had testing of [upper and lower extremities] with EMG, but does not recall what they indicated. Reports he has been told he was "pre-diabetic", but has never been told he has diabetes. States due to his feet feeling so numb, he loses his balance and has had falls. He cannot feel the position of his feet. The pain has been more intense in past, but is now on Lyrica and duloxetine and pain of feet is better. However, they continue to feel very numb. Reports he is being seen by a neurologist who is helping him with the treatment for his peripheral neuropathy symptoms. [sic] With the Veteran's lay statements, the medical evidence, and the examination findings in mind, the examiner opined that the peripheral neuropathy of bilateral lower and upper extremities was less likely than not related to service. The rationale was as follows: As a direct SC condition to herbicide exposure, the condition should be apparent and present within the first year of exposure/discharge. STRs and subsequent medical records are silent to symptoms and/or diagnosis within this time period. However, the Veteran has had a long standing history of elevated glucose levels, hyperglycemia and elevated HgbA1C as high as 6.4%, and noted fasting glucose levels of 126. Specialty evaluation by neurologist(s) and results of this exam today indicate a polysensory peripheral neuropathy to moderate degree of lower extremities, and mild of upper extremities. Upper extremities have an additional diagnosis of carpal tunnel syndrome by exam as well as noted in medical records, which is not direct SC or secondary SC based on STRs and other record review.) Polysensory neuropathy is most frequently associated with diabetes mellitus. Although the Veteran does not have a frank diagnosis of Diabetes Mellitus, the long standing history of elevated blood glucose levels have more than likely affected the small nerve fibers of the lower extremities to a greater degree - moderate, and of the upper extremities to a lesser degree - mild. Therefore, the Veteran's neurological disorder of polysensory peripheral neuropathy of the lower extremities of a moderate degree, and of the upper extremities in a mild degree is as likely as not secondary to an in-service herbicide exposure, incurred in or caused by the elevated glucose levels/diagnosed as pre-diabetic hyperglycemia in-service herbicide exposure. [sic] The Board assigns substantial probative value to the December 2019 opinion, as it was based on an in-person examination of the Veteran and reflects consideration of all relevant facts, specifically citing to STRs, post-service treatment records and medical evidence, the Veteran's lay statements, and the Veteran's specific contentions concerning an association between the peripheral neuropathies and Agent Orange exposure. The examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, 22 Vet. App. at 295; Stefl, 21 Vet. App. at 124. Notably, the record does not contain a medical opinion to the contrary. In light of the foregoing, the probative evidence weighs persuasively against finding that the Veteran's neurological disorders of the bilateral upper and lower extremities, claimed as peripheral neuropathies, are related to service, to include in-service Agent Orange exposure. As there is no reasonable doubt to resolve in the Veteran's favor, the benefit of the doubt rule does not apply, and the claims must be denied. DUSTIN L. WARE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.