Citation Nr: 18131259
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 08-26 144
DATE:	August 31, 2018
ORDER
Service connection for peripheral neuropathy of the bilateral lower extremities, to include due to herbicide agent exposure, is denied.
FINDING OF FACT
The weight of the competent and probative evidence is against finding that peripheral neuropathy of the bilateral lower extremities had its onset in or is otherwise related to the Veteran’s period of service.  
CONCLUSION OF LAW
The criteria for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include due to herbicide agent exposure, have not been met.  38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from August 1969 to August 1971.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2006 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  
In July 2012, the Veteran, in Montgomery, Alabama, testified before the undersigned at a videoconference hearing.  A transcript of that hearing has been associated with the virtual file and reviewed. 
This case was previously before the Board in September 2012, July 2015, and September 2016, on which occasions it was remanded for further development.  As the requested development has been completed, no further action to ensure compliance with the remand directives is required.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  
Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include due to herbicide agent exposure
The Veteran contends that peripheral neuropathy of the bilateral lower extremities is due to in-service herbicide agent exposure.  
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 service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 
As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.
The Veteran is competent to report symptoms and experiences observable by his senses.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).
In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990).  
After review of the record, the Board finds that the criteria for service connection for peripheral neuropathy of the bilateral lower extremities have not been met. 
The record contains a competent diagnosis of sensorimotor polyneuropathy of the bilateral lower extremities.  06/08/2011, VA Examination.  Accordingly, the Board finds competent evidence of a current disability.  
If a veteran was exposed to an herbicide agent during active service, the diseases set forth in 38 C.F.R. § 3.309(e) will be presumed to be related to such service if they become manifest to a degree of 10 percent or more at any time after service, except that early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service.  38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(ii).  The Veteran’s military personnel records demonstrate that he served in Vietnam in 1970.  07/24/2015, Military Personnel Record.  Accordingly, the Veteran is presumed to have been exposed to herbicide agents during service.  38 C.F.R. § 3.307(a)(6)(iii).  
The Veteran acknowledges that he did not experience any symptoms of peripheral neuropathy during his period of service.  07/24/2012, Hearing Testimony.  
The Veteran contends that he sought treatment at the VA Medical Center (VAMC) in Birmingham, Alabama, in the mid-1970s for symptoms of dizziness, weakness, loss of balance, and double vision, which he contends are the same as the peripheral neuropathy symptoms he currently experiences.  The Veteran reports that doctors were unable to provide a diagnosis for his symptoms at that time and his symptoms resolved until recurring in the mid-2000s.  09/11/1996, Statement; 11/06/2006, Statement; 03/30/2007, Statement; 05/10/2011, Hearing Testimony; 07/24/2012, Hearing Testimony.  Although a request for all medical records from the Birmingham VAMC from 1974 to 2005 did not demonstrate treatment in the mid-1970s, the Board will resolve doubt in favor of the Veteran and presume that such treatment occurred.  While the Veteran is competent to report experiencing dizziness, weakness, loss of balance, and double vision, he is not competent to attribute those symptoms to peripheral neuropathy, which requires specialized medical training and knowledge.  See 38 C.F.R. § 3.159(a); Jandreau, 492 F.3d at 1377.  
In 2005 the Veteran sought treatment for pain, numbness, tingling, and burning sensation of the legs and feet, which he reported experiencing for several years.  A June 2005 nerve conduction study demonstrated moderately severe sensorimotor polyneuropathy of the bilateral lower extremities.  A June 2007 treatment note reflects the Veteran’s report of the onset of the symptoms as four years prior, or 2003.  11/09/2006, Medical-Non-Government; 07/03/2008, Medical-Government; 08/24/2012, Medical-SSA.
A March 2007 letter from the Veteran’s treating physician, S.L.S., MD, noted that the Veteran had difficulty with neuropathy for several years, explained that testing had not revealed any cause for the neuropathy, and opined that Agent Orange exposure should be a consideration for this particular case.  04/16/2007, Medical-Non-Government.  
In June 2011 a VA examiner noted that the onset of peripheral neuropathy was approximately 2003.  The examiner acknowledged the Veteran’s report that in 1994 he had intermittent episodes of blurry vision with double vision and falls related to visual problems.  Etiology was never determined and after a few years the symptoms stopped occurring.  The Board acknowledges that the examiner indicated the year as 1994, but finds that it is likely a typographical error and that the examiner intended to write 1974, which is the year the Veteran contends those symptoms and treatment occurred.  See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) (“The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder.”); see also Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (explaining that an examination report “must be read as a whole”).  As the examiner noted, even if the symptoms described by the Veteran were related to peripheral neuropathy, they occurred more than one year after discharge and any potential in-service Agent Orange exposure.  06/08/2011, VA Examination.  
In November 2016 a VA examiner opined that there is no clinical evidence of symptoms of peripheral neuropathy until the 2006 diagnosis made by a private provider.  11/04/2016, C&P Exam.  
In light of the above, the Board finds that the weight of the competent and probative evidence is against finding that peripheral neuropathy manifested to a compensable degree within one year after the last date the Veteran was exposed to herbicide agents during service.  Even assuming the Veteran’s symptoms in 1974 were related to peripheral neuropathy, such symptoms did not occur within one year of the last date of in-service herbicide agent exposure, as the Veteran was discharged in August 1971.  Accordingly, a presumption of service connection based on in-service herbicide agent exposure is not warranted.  38 C.F.R. § 3.307(a)(6)(ii).  However, the Board will consider whether there is evidence of actual direct causation of peripheral neuropathy of the legs due to herbicide agent exposure.  See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).
In May 2017 a Veterans’ Health Administration (VHA) neurologist opined that it is less likely than not that the Veteran’s peripheral neuropathy is due to presumed in-service herbicide agent exposure given (i) the greater than 30-year delay between herbicide agent exposure and the onset of peripheral neuropathy symptoms and (ii) the lack of clearly supporting evidence for a link between Agent Orange exposure and delayed-onset peripheral polyneuropathy in scientific studies.  The neurologist acknowledged that the Veteran’s peripheral neuropathy has no clearly defined etiology, but explained that it is not unusual for individuals to have peripheral neuropathy with no known etiology, including individuals with no known chemical exposure.  The neurologist cited to the conclusion of the Institute of Medicine that the evidence does not support an association between exposure to herbicide agents such as Agent Orange and the development of delayed-onset chronic neuropathy.  Animal studies of chemical exposure and delayed-onset neuropathy refer to delays of days until symptom onset, not latent periods of years.  He supported his opinion and rationale with a record review and citations to relevant scientific literature.  10/03/2017, Medical Opinion.  
The Board assigns more probative weight to the May 2017 VA neurologist’s opinion than the March 2007 letter from the Veteran’s treating physician because the language used in the latter was equivocal in nature and there is no indication that the private physician reviewed relevant scientific literature to support her statement.  Accordingly, the Board finds that weight of the competent and probative evidence is against finding that peripheral neuropathy of the bilateral lower extremities had its onset in or is otherwise related to the Veteran’s period of service, to include due to presumed herbicide agent exposure.  
In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.
 
Eric S. Leboff
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J.A. Gelber, Associate Counsel 

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