Citation Nr: 24005148 Decision Date: 02/01/24 Archive Date: 02/01/24 DOCKET NO. 13-02 327A DATE: February 1, 2024 ORDER Service connection for right lower extremity neuropathy is denied. Service connection for left lower extremity neuropathy is denied. Service connection for right upper extremity neuropathy is denied. Service connection for left upper extremity neuropathy is denied. Service connection for neck and throat cancer is denied. FINDINGS OF FACT 1. The Veteran's peripheral neuropathies were not early onset peripheral neuropathies that are presumed to be associated with exposure to herbicide agents. 2. The evidence of record persuasively weighs against finding that the Veteran's right lower extremity neuropathy, left lower extremity neuropathy, right upper extremity neuropathy, or left upper extremity neuropathy began during active service, within one year of separation from service, or are otherwise related to an in-service injury or disease, including exposure to herbicide agents. 3. The Veteran's cancer, carcinoma tonsil with metastatic squamous cell carcinoma in the area of the nodes in the upper jugular area, is not among the diseases that are presumed to be associated with exposure to herbicide agents. 4. The evidence of record persuasively weighs against finding that the Veteran's neck and throat cancer began during active service, within one year of separation from service, or is otherwise related to an in-service injury or disease, including exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for right lower extremity neuropathy, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for left lower extremity neuropathy, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for right upper extremity neuropathy, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for left upper extremity neuropathy, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for neck and throat cancer, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107(b); 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 June 1968 to January 1971. The Veteran died in March 2014. The appellant, who has been substituted as the claimant in this appeal, is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These matters have previously been before the Board. In January 2023, the Board remanded these claims for medical opinions which have since been obtained. Subsequently, the Board finds that substantial compliance with its prior remand directives have been met. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board may proceed with adjudication. Service Connection 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). For certain chronic diseases, including organic diseases of the nervous system and malignant tumors, service connection can be presumed without showing evidence of such disease having been incurred during a period of service, if the disease has manifested to a degree of ten percent or more within one year from the date of separation. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. If a veteran was exposed to an herbicide agent during service, certain listed diseases shall be service-connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 1. Entitlement to service connection for right lower extremity neuropathy, left lower extremity neuropathy, right upper extremity neuropathy, and left lower extremity neuropathy The appellant, and the Veteran before her, contends that the Veteran's peripheral neuropathies are due to his military service, to include as a result of in-service herbicide agent (Agent Orange) exposure. See May 2012 notice of disagreement; August 2014 statement from appellant. The Board concludes that the evidence weighs against finding that the claimed peripheral neuropathies began during service, manifested to a compensable degree within the applicable presumptive period, or are otherwise related to service, to include as due to exposure to herbicide agents. The Veteran's service treatment records (STRs), including his January 1971 separation examination report, are silent for any complaints, findings, treatment, or diagnoses related to peripheral neuropathy. His post service private treatment records show that in March 2011, 40 years following separation from military service, the Veteran was seen for nerve conduction studies of his upper extremities. At this appointment, electrodiagnostic evidence was found that suggested that the Veteran was experiencing a demyelinating polyneuropathy in his upper extremities bilaterally. It was noted that while the electrodiagnostic evidence at that appointment did not meet definitive diagnostic criteria for an acquired demyelinating neuropathy such as chronic inflammatory demyelinating polyradiculoneuropathy (CIPD), CIPD was "certainly a strong possibility". Nerve conduction studies of the lower extremities was also suggested. Because the Veteran's STRs fail to establish a diagnosis of peripheral neuropathy during military service and his post service treatment records indicate that his peripheral neuropathy was diagnosed in 2011, decades after separation from service, service connection on a presumptive basis under the chronic disease provisions of 38 U.S.C. § 1112 is not warranted. Notably, neither the Veteran nor the appellant has asserted that his peripheral neuropathy had its onset in service or within one year of separation. Rather, as stated above, it is asserted that the claimed disabilities are related to in-service herbicide agent exposure. The Veteran's military personnel record reflects that he had service in the Republic of Vietnam during the Vietnam War; therefore, he is presumed to have been exposed to herbicide agents. However, only early onset peripheral neuropathy is included as a presumed condition under 38 U.S.C. § 1116. By regulation, to be considered early onset peripheral neuropathy, the neuropathy must have been at least 10 percent disabling within one year of herbicide exposure. In an October 2011 statement, the Veteran stated that he experienced muscle twitching, tingling, and numbing of fingers and hands, along with jerky movements of extremities. The Veteran also stated that these symptoms had been happening for a few years but had recently gotten worse. Because the Veteran's statement and treatment records do not reflect that he was diagnosed with neuropathy within one year of herbicide agent exposure, the herbicide agent exposure presumptive provisions of 38 U.S.C. § 1116 do not apply in these claims. Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on herbicide agent exposure is not precluded from establishing service connection for such disability as due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Pursuant to the Board's January 2023 remand, VA medical opinions regarding the nature and etiology of the Veteran's peripheral neuropathies were obtained in August 2023. The examiner provided the same substantive opinion for the Veteran's right lower extremity neuropathy, left lower extremity neuropathy, right upper extremity neuropathy, and left lower extremity neuropathy conditions. The examiner opined that the Veteran's neuropathy/CIDP were less likely than not caused by his service including as a result of exposure to herbicide agents. The examiner explained that neuropathy can be due to spinal/vertebral pathology, nerve impingement at various extremity levels, trauma, medication, metabolic causes, vitamin deficiencies, overdoses, or diabetes. The examiner also stated that he found no objective documentation in the Veteran's records that would attribute the Veteran's neuropathy to any particular cause, including herbicide agent exposure as no medical literature had been found to support such a connection. Although the examiner stated that he found no objective evidence to explain the underlying etiology of the Veteran's claimed peripheral neuropathy, the examiner did note that the Veteran's treatment records included a neurology consultation in March 2011 in which it was suggested that that it was a strong possibility that the Veteran's neuropathy was an acquired demyelinating neuropathy such as CIDP. The examiner then explained that CIDP is a rare neurological disorder in which there is inflammation of nerve roots and peripheral nerves and destruction of the fatty protective covering (myelin sheath) of the nerve fibers. The examiner also explained that while the exact cause of CIDP is unknown, there were strong indicators that CIDP was an autoimmune disorder. Subsequently, the examiner concluded that given the Veteran's symptoms, onset of symptoms more than 30 years after his separation from service, and the strong indication that CIDP is an autoimmune disorder, it was less likely that the Veteran's CIDP was etiologically related to service or herbicide agent exposure. While the Veteran and appellant believe the Veteran's peripheral neuropathies are related to his service, including exposure to herbicide agents, they are not competent to provide a nexus opinion regarding this issue. The issue is medically complex. Therefore, it is outside the competence of the Veteran and appellant in this case because the record does not show that they have the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA medical opinions. The Board finds the August 2023 VA examiner's opinions to be highly probative because they were based on an accurate understanding of the Veteran's medical history and provided an explanation that contained clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In sum, the evidence of record persuasively weighs against finding that the Veteran's peripheral neuropathies were incurred during, caused by, or related to his active military service, to include his exposure to herbicide agents therein. Notably, neither the Veteran nor appellant has asserted, nor does the record reflect, that the Veteran experienced peripheral neuropathy while in service or continuously since service. Subsequently, the Board finds that the criteria for service connection for right lower extremity neuropathy, left lower extremity neuropathy, right upper extremity neuropathy, and left lower extremity neuropathy have not been met and the claims must be denied. 38 U.S.C. § 5107(b). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as there is not an approximate balance of positive and negative evidence regarding the claim; the benefit of the doubt doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 2. Entitlement to service connection for neck and throat cancer The appellant, and the Veteran before her, contends that the Veteran's carcinoma tonsil with metastatic squamous cell carcinoma in the area of the nodes in the upper jugular area, also referred to herein as neck and throat cancer, is due to his military service, to include as a result of in-service herbicide agent (Agent Orange) exposure. The Board concludes that the evidence weighs against finding that the claimed neck and throat cancer began during service, manifested to a compensable degree within the applicable presumptive period, or is otherwise related to service, to include as due to exposure to herbicide agents. The Veteran's STRs, including his January 1971 separation examination report, are silent for any complaints, findings, treatment, or diagnoses related to his neck or throat. His post service private treatment records show that in July 2009, more than 35 years following separation from military service, he was diagnosed and treated for carcinoma tonsil metastatic squamous cell carcinoma. Because the Veteran's STRs fail to establish diagnosis of head and neck cancer during military service and his post service treatment records indicate that his neck and throat cancer was diagnosed in July 2009, decades after separation from service, service connection on a presumptive basis under the chronic disease provisions of 38 U.S.C. § 1112 is not warranted. Notably, neither the Veteran nor the appellant has asserted that his neck and throat cancer had its onset in service or within one year of separation. Rather, as stated above, they have asserted that the claimed disability is related to in-service herbicide agent exposure. As noted above, the Veteran's military personnel record reflects that he had service in the Republic of Vietnam during the Vietnam War; therefore, he is presumed to have been exposed to herbicide agents. However, the list of diseases afforded this presumption does not include the condition on appeal. Consequently, the herbicide agent exposure presumptive provisions of 38 U.S.C. § 1116 do not apply in this claim. Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on herbicide agent exposure is not precluded from establishing service connection for such disability as due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Pursuant to the January 2023 Board remand, a VA medical opinion regarding the nature and etiology of the Veteran's neck and throat cancer was obtained in August 2023. The examiner opined that the Veteran's carcinoma tonsil with metastatic squamous cell carcinoma in the area of the nodes in the upper jugular area was less likely than not incurred in or caused by an in-service injury, event, or illness. The rationale provided was that the Veteran had a history of decades of heavy cigarette smoking which was strongly likely to be the cause of his neck and throat cancer. The examiner explained that unlike many other malignancies, whose causes were largely unknown, neck and throat cancer was known to be caused by tobacco smoking in as many as 90 percent of patients. The examiner also was unable to speculatively link the Veteran's neck and throat cancer condition to Agent Orange exposure. The examiner listed other causes of neck and throat cancer as including: smoking, radon exposure, asbestos exposure, halogen ether exposure, chronic interstitial pneumonitis, inorganic arsenic exposure, radioisotope exposure, ionizing radiation, atmospheric pollution, chromium nickel exposure, and vinyl chloride exposure. This list of alternative causes does not include herbicide agents. The Board acknowledges the Veteran's and appellant's belief that the Veteran's neck and throat cancer are related to his herbicide agent exposure. However, they are not competent to provide a nexus opinion in this case. This issue is medically complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence; namely the August 2023 VA examination and the Veteran's treatment records which reflect that the Veteran smoked for decades before stopping in 2001. The Board finds the August 2023 VA examiner's opinion to be probative, because it was based on an accurate understanding of the Veteran's medical history and provided an explanation that contained clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board also acknowledges that in the January 2013 VA Form 9, substantive appeal, it was stated that visits with the Veteran's oncologist and psycho-neurologist did not rule out Agent Orange exposure for his cancer issues. However, the record does not contain any medical opinion stating that his neck and throat cancer was caused by or related to herbicide agent exposure. Although the Veteran and appellant are competent to relay what they were told by an oncologist and psycho-neurologist and the Board has no reason to question their account of what these physicians may have told them, this nevertheless constitutes indirect evidence concerning what the oncologist and psycho-neurologist purportedly said and is much more general in nature than the VA medical opinion detailed above. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (finding that the connection between what a physician said and the layman's account of what he purportedly said, filtered through a layman's sensibilities, is too attenuated and inherently unreliable to constitute medical evidence); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). Specifically, unlike the VA examiner's opinion, there is no explanation or rationale provided for the oncologist's and psycho-neurologist's opinions. Additionally, the Board notes that their opinions, if they were accurately and precisely told by the Veteran and appellant, are too speculative to support the claim as the clinicians apparently indicated only that Agent Orange could not be "rule[d] out" as a cause for the Veteran's cancer. The August 2023 VA examiner, by contrast, was unable to link the Veteran's neck and throat cancer condition to Agent Orange exposure and, as discussed above, provided a thorough explanation and rationale for that opinion. Therefore, the weight of the evidence is against a finding that the Veteran's neck and throat cancer incurred during, is caused by, or is related to his active military service, to include his exposure to herbicide agents therein. The record also fails to demonstrate that the Veteran was diagnosed with neck and throat cancer within one year of separation from service. Subsequently, the Board finds that the criteria for service connection for neck and throat cancer have not been met and the claim must be denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as there is not an approximate balance of positive and negative evidence regarding the claim; the benefit of the doubt doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Coburn 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.