Citation Nr: 1648511	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  11-32 612	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to herbicide exposure.


REPRESENTATION

Appellant represented by:	Collin A. Douglas, Agent


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Schechner, Counsel
INTRODUCTION

The appellant is a Veteran who served on active duty from December 1965 to December 1967, with service in Vietnam.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Nashville, Tennessee RO.  In June 2013, a videoconference hearing was held before the undersigned; a transcript of the hearing is in the record.  In September 2014 and March 2016, the Board remanded the matter for additional development.


FINDING OF FACT

The Veteran is not shown to have early onset peripheral neuropathy; his lower extremity peripheral neuropathy became manifest many years after his active service, and the preponderance of the evidence is against a finding that it is related to his service, to include as due to his exposure to herbicides/Agent Orange therein.


CONCLUSION OF LAW

Service connection for peripheral neuropathy of the lower extremities, to include as due to herbicide exposure, is not warranted.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307(a), 3.309(e) (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

VA's duty to notify was satisfied by an April 2010 letter.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015).

During the June 2013 videoconference Board hearing, the undersigned advised the Veteran of what is still needed to substantiate the claim (evidence that the claimed disability is related to, was incurred or aggravated in, service).  

The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured.  The AOJ arranged for VA examinations in May 2010 and January 2015, which will be discussed in greater detail below, though the Board finds these examinations to (cumulatively) be adequate for rating purposes as they included both a review of the Veteran's history and physical examinations that included all necessary findings.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes).  The Veteran has not identified any evidence that remains outstanding.  The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met.  

Legal Criteria, Factual Background, and Analysis

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability.  See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).
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.A. § 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.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied.  A veteran who served in Vietnam during the Vietnam Era is presumed to have been exposed to herbicides.  38 U.S.C.A. § 1116(f).  The list of diseases afforded this presumption includes early-onset peripheral neuropathy.  38 C.F.R. § 3.307(a)(ii) provides that early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year following last exposure to herbicides in service.   

A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  Alternatively, a nexus to service may be established by showing continuity of symptomatology since service.  Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013).

Lay evidence may be competent evidence to establish incurrence.   See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge.  Id.

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  

The Veteran seeks service connection for peripheral neuropathy of both lower extremities based, in part, on exposure to Agent Orange in service.  His service personnel records show that he served in the Republic of Vietnam in 1966 and 1967, thus his exposure to Agent Orange is presumed.  See 38 U.S.C.A. § 1116.

The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis of peripheral neuropathy of an extremity.  On November 1967 service separation examination, clinical evaluations of the Veteran's lower extremities and neurological systems were normal; in an associated report of medical history, he denied having or having ever had neuritis.

Postservice, the Veteran first sought treatment for neuropathy symptoms in the feet in August 2007.  On April 2009 treatment, he reported that for the past 2 years he had had burning pain and cold in his feet from the mid-portion of the foot distally, bilaterally.  He was noted to have a 4 year history of rheumatoid arthritis.  EMG studies on the muscles of both legs did not reveal evidence of any denervation in the right or left lumbar root territories.  Peroneal and posterior tibial nerve conduction studies found some very mild distal conduction slowing; the sural nerve sensory potential and the gastrocnemius H reflex were absent.  The findings were considered consistent with a mild to moderate mixed peripheral neuropathy.

On May 2009 VA treatment, the Veteran reported that he recently had peripheral neuropathy diagnosed by his podiatrist.  The assessments included idiopathic peripheral neuropathy, symptomatic.

On May 2010 VA examination, the Veteran reported a gradual onset of peripheral neuropathy in April 2009.  He reported that he served in Vietnam in 1966 and 1967, where he patched bullet holes in airplanes and was exposed to Agent Orange on numerous occasions.  He reported that he began having problems with his legs and feet after he retired from his civilian job with Bell South telephone company, where he climbed ladders and poles.  He stated that at first he thought his legs and feet hurt due to his civilian occupation, but after he retired in 2002, the pain, numbness, burning, and tingling continued to the point that he could not sleep at night.  He reported that he first mentioned it to his doctor in 2003 or 2004 and it was thought to be due to his arthritis, but later he was sent to neurology, where an EMG study confirmed peripheral neuropathy.  Following a physical examination, the examiner noted that a review of private records revealed that the Veteran smoked for 20 years and quit about 5 years earlier.  An April 2009 EMG/nerve conduction study on the muscles of both legs did not reveal evidence of denervation; but peroneal and posterior tibial nerve conduction studies revealed some very mild distal conduction slowing, the sural nerve sensory potential was absent, and the gastrocnemius H reflex was absent, consistent with a mild to mixed peripheral neuropathy.  The examiner noted that acute and subacute peripheral [now characterized as early onset] neuropathy is muscle weakness and atrophy (weakening and wasting away) of the lower extremities [which is manifested within] one year from last exposure to Agent Orange.  The examiner observed that [the Veteran's lower extremity] did not fall into these guidelines, and also that there is no history of diabetes mellitus [to which the neuropathy could otherwise be attributed].

On June 2010 VA treatment, the Veteran was referred for electrodiagnostic evaluation of possible lower extremity peripheral neuropathy.  He reported having bilateral lower extremity numbness, tingling and burning pain, which he had had for more than 15 years; he had thought the symptoms were related to his job but the problem persisted after he quit 8 years earlier.  The assessment was an abnormal study with electrodiagnostic evidence of mild to moderate axonal length dependent sensory motor polyneuropathy; a superimposed right S1 radiculopathy could not be completely excluded.

At the June 2013 hearing, the Veteran testified that he is not diabetic, and he gets treatment for arthritis every six months.  He testified that he began having pain in his feet and legs in the mid-1980s or 1990s, but believed it was due to his job which involved climbing ladders.  He testified that he takes pain medication for arthritis, which also helps the neuropathy, and that he also takes a sleeping pill to help him sleep at night despite his leg pain.
In September 2014, the Board found the May 2010 VA examination to be inadequate and remanded the matter for a new examination.  On January 2015 VA examination, the examiner reviewed rheumatology treatment notes from 2007 to 2012, including treatments and onset of symptoms of polyneuropathy.  The Veteran reported that he served as an airplane repairman in the Army, and after his discharge he worked for AT&T as an installer and climbed ladders all day.  He then worked for Bell South, climbing ladders and hooks as part of his job, and he retired in 2002.  He was noted to have a medical history significant for rheumatoid arthritis that was diagnosed in 2005, lupus and hypertension.  He reported that he began to experience burning pain in both feet when he retired; he believed he also had symptoms earlier but did not pay much attention to them because he thought it was due to his job duties.  He reported currently feeling a constant burning pain in both feet and legs, worse at night when he lies down; his feet feel cold, and are painful with a constant burning feeling.  He took Lortab for rheumatoid arthritis pain and neuropathic pain.  He reported losing balance at times but denied any falls as he could usually catch himself.  Following physical examination, the examiner opined that the Veteran's peripheral neuropathy was less likely than not (less than 50% probability) incurred in or caused by the claimed injury, event or illness in service.  The examiner stated that there is no evidence in the medical records that the Veteran's peripheral neuropathy is related to his in-service exposure to herbicides in Vietnam, and there is medical evidence that documents the onset of symptoms in 2007 or 2008.  The examiner opined that this would support that there is no relationship between onset of symptoms and service in the Army in Vietnam with exposure to herbicides in 1965 to 1967.  The examiner noted that the Veteran has other risk factors for peripheral neuropathy as several drugs used to treat his rheumatoid arthritis have been associated with reports of peripheral neuropathy.

In January 2016, the Veteran submitted a statement from his private rheumatologist, Dr. Turner, who stated that the Veteran is under her care for rheumatoid arthritis and systemic lupus erythematosus, first diagnosed around 2009.  She stated that the Veteran gave a history of neuropathic pain dating back to the 1960s following service with the military, and he gave a history of exposure to Agent Orange.  She noted that he has had at least two EMG nerve conduction studies which confirmed the presence of peripheral neuropathy, most recently in October 2015; the conclusion of that study was that it was abnormal and that there was evidence of a length dependent large fiber sensory motor polyneuropathy with mixed features of axonal loss and non-segmental demyelization.  It was noted that the pattern was non-specific and could be related to a wide variety of conditions including abnormal glycemic control, vitamin deficiencies, toxic neuropathies, paraproteinemias, and connective tissue disease.  Dr. Turner stated that the Veteran has tested negative for heavy metal exposure, vitamins including B12 and folate have been within normal range, he is not diabetic, and he does not have a known history of paraproteinemia.  She opined that, while he does have lupus and rheumatoid arthritis, these diseases started decades after the onset of peripheral neuropathy.  Dr. Turner opined based on the Veteran's history of service and exposure during that service and no other known risk factors for peripheral neuropathy to have developed in the 1960s, that there is at least a 51% probability that his neuropathy may be directly linked to exposure to Agent Orange/dioxin.  

In the March 2016 remand, the Board noted that Dr. Turner's opinion appears to be based on the Veteran's self-reported history of when peripheral neuropathy had its onset (in the 1960s).  The Board found that, inasmuch as that reported history is at wide variance with previous reports of onset (ranging from the mid-1980s to mid-1990s) and is based solely on the Veteran's reported history, the opinion is lacking in probative value.  The Board noted that the private physician stated that she is the Veteran's treatment provider, and her reference to the Veteran's history of neuropathic pain dating back to the 1960s suggests there may be medical treatment records (including from her own treatment of the Veteran) documenting a lengthy history of neuropathic pain complaints.  The Board remanded the matter to obtain any such outstanding records.

Pursuant to the Board's March 2016 remand, private treatment records were obtained from University Rheumatology Associates and Arthritis Associates from 2007 through 2016, reflecting treatment for peripheral neuropathy of the lower extremities.  The records include Dr. Turner's initial evaluation of the Veteran in July 2010, noting he reported a past medical history including, in pertinent part, Agent Orange exposure and peripheral neuropathy.  Following physical examination, the impressions included peripheral neuropathy secondary to Agent Orange exposure, with no rationale offered.

Significantly, the Veteran's STRs are silent for peripheral neuropathy of the lower extremities.  Accordingly, the Board finds that service connection for such disability on the basis that it became manifest in service and has persisted since is not warranted.

The Veteran asserts that his lower extremity peripheral neuropathy is causally related to his exposure to Agent Orange in service.  Although by virtue of his service in Vietnam he is presumed to have been exposed to herbicides, he is not shown to have the specific type of peripheral neuropathy which is listed among the diseases enumerated under 38 C.F.R. § 3.309(e).  His treatment records do not show a diagnosis of early onset [or as previously characterized acute or subacute] peripheral neuropathy; his current neuropathy was not manifested within a year following his last exposure to Agent Orange in service.  Consequently, service connection for the lower extremity peripheral neuropathy on a presumptive basis, under 38 U.S.C.A. § 1116, is not warranted.   

Under Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to Agent Orange is not precluded from establishing service connection for such disability as due to Agent Orange exposure with proof of direct causation.  The record includes both medical evidence that tends to support the Veteran's claim that his lower extremity peripheral neuropathy is related to exposure to Agent Orange in service and medical evidence that is against such claim.  When evaluating this evidence, the Board must analyze its credibility and probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the appellant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In evaluating medical opinions, the Board may place greater weight on one medical professional's opinion over another's depending on factors such as reasoning employed by the medical professionals, and whether or not and to what extent they review prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36 (1994).

The Veteran has consistently reported, including in June 2013 hearing testimony, that his neuropathy symptoms started in the mid-1980s or 1990s (or even later, see 2007 and 2009 private treatment record), many years after his last presumed exposure to herbicides in service.  The Board accords great probative weight to the January 2015 VA medical opinion against the Veteran's claim; it is the only opinion in the record that reflects familiarity with the complete factual background/the Veteran's entire medical history, and includes a thorough explanation of rationale.  The examiner pointed to the specific clinical data which make it unlikely that the Veteran's peripheral neuropathy is related to his exposure to Agent Orange.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects a "clinical data or other rationale to support his opinion"); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it must be clear from the record that an opinion provider "was informed of the relevant facts" when rendering a medical opinion).  

In light of the inconsistencies between the record and the facts on which Dr. Turner's January 2016 opinion (in support of the Veteran's claim) is premised, the Board finds that opinion lacking in probative value.  Specifically, Dr. Turner notes  the Veteran's history of experiencing neuropathic pain dating back to the 1960s (in service or soon thereafter); however, such history is not supported by contemporaneous medical evidence and is inconsistent with the Veteran's own reports in the course of treatment and in sworn hearing testimony that his symptoms began in the 1980s or later.  The Board's March 2016 remand sought records of any treatment for neuropathy dating back to the 1960s; the medical records received for the record date back only as far as 2007, and show that Dr. Turner first saw the Veteran in 2010.  Significantly however, Dr. Turner identified other possible etiological factors for the Veteran's development of peripheral neuropathy, including rheumatoid arthritis and lupus (neither of which is service-connected).

The Veteran's own statements relating his peripheral neuropathy of the lower extremities to his service, to include his exposure to Agent Orange therein, are not competent evidence; he is a layperson, and lacks the training to opine regarding medical causation in this matter.  Whether a disease such as peripheral neuropathy [other than early onset peripheral neuropathy] is related to Agent Orange exposure is a medical question, beyond the scope of common knowledge/resolution by lay observation.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007).

In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim.  Accordingly, the appeal in this matter must be denied.


ORDER

Service connection for peripheral neuropathy of the lower extremities is denied.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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