Citation Nr: 0209347 Decision Date: 08/07/02 Archive Date: 08/12/02 DOCKET NO. 99-02 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the lower extremities, including as a result of exposure to Agent Orange. 2. Entitlement to service connection for peripheral neuropathy of the upper extremities, including as a result of exposure to Agent Orange. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nancy Rippel, Counsel INTRODUCTION The veteran served on active duty from October 1967 to June 1971, including a nine month tour of duty in the Thailand. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that denied service connection for peripheral neuropathy, including as a result of exposure to Agent Orange. In January 2001, the Board remanded the claim to the RO for additional development. That development has been completed, and the case has been returned to the Board. FINDINGS OF FACT 1. Peripheral neuropathy of the lower extremities is causally related to the veteran's service-connected bilateral tarsal tunnel syndrome. 2. The evidence does not demonstrate that the veteran has peripheral neuropathy of the upper extremities that is causally related to the veteran's service, to a service- connected disability, exposure to herbicide or to any other incident of service. CONCLUSIONS OF LAW 1. Peripheral neuropathy of the lower extremities is proximately due to or the result of the veteran's service- connected bilateral tarsal tunnel syndrome. 38 U.S.C.A. § 1110, 1112, 1131, 1137, 5103, 5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2001); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). 2. Peripheral neuropathy of the upper extremities was not incurred in or aggravated by service nor is it proximately due to or the result of the veteran's service-connected disability, nor may is be presumed to have been so incurred. 38 U.S.C.A. § 1110, 1112, 1116(a), 1131, 1137, 5103, 5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 3.303, 307(a)(6), 3.309(e), 3.310 (2001); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA) became law. The VCAA applies to all pending claims for VA benefits and provides, among other things, that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by VA. See 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2001); see also 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.159). The Board finds that the duties and obligations under the VCAA have in fact been met with regard to the claim of service connection for peripheral neuropathy. The veteran has undergone VA examinations, and the veteran's treatment records have been obtained. The veteran has been informed of all pertinent laws and regulations through the February 1999 statement of the case as well as the April 2002 supplemental statement of the case. According to the law, service connection is warranted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). For certain chronic diseases specified by statute, including organic diseases of the nervous system, the nexus element may be satisfied by presumption if the disease is manifest within a certain prescribed time following service separation, usually to a degree of 10 percent within the first post-service year. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The mere fact of an in-service injury is not enough, there must be chronic disability resulting from that injury. If there is no evidence of a chronic condition during service, or an applicable presumption period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). If service connection is to be established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Id. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when aggravation of a nonservice-connected disorder is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. 3.310(a) (2001); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (holding that, pursuant to 38 U.S.C.A. § 1110 and § 3.310(a), when aggravation of a veteran's nonservice- connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation). The following diseases are deemed associated with herbicide exposure, under VA law: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma and diabetes mellitus (Type 2). See 38 C.F.R. § 3.309(e); see also 38 U.S.C.A. § 1116(f), as added by § 201(c) of the "Veterans Education and Benefits Expansion Act of 2001," Pub. L. No. 107-103, 115 Stat. 976 (2001) (which added diabetes mellitus (Type 2) to the list of presumptive diseases as due to herbicide exposure). For purposes of this section, the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e). The foregoing diseases shall be service connected if a veteran was exposed to a herbicide agent during active military, naval, or air service, 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 and 38 C.F.R. § 3.307(d) are also satisfied. In order to establish service connection by presumption, based on herbicide exposure, the diseases listed above (see 38 C.F.R. § 3.309(e)) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda and acute or subacute 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. See 38 C.F.R. § 3.307(a)(6)(ii). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994). See also 61 Fed. Reg. 41,442-41,449, and 61 Fed. Reg. 57,586- 57,589 (1996), 64 FR 59232-43 at 59238-9 (Nov. 2, 1999). Thus, claims based on Agent Orange exposure are unique in that entitlement, under the presumptions codified in 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307 and 3.309, is based on an analysis of scientific evidence, ordered by statute. 38 U.S.C.A. § 1116(b). Notwithstanding the foregoing presumption provisions, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). As an initial matter, the Board notes that service personnel records show that the veteran was awarded the Republic of Vietnam Campaign Medal (RVCM) and his DD 214 shows an award of the Vietnam Service Medal (VSM). Service personnel records reveal that his only overseas service was in Thailand, with no Vietnam service, and show that his military occupational specialty while stationed in Thailand was that of an Administrative Clerk. The VSM is representative of the veteran being in the general theater of operations during the Vietnam War, not necessarily in Vietnam. The VSM awarded to the veteran was also awarded to all members of the Armed Forces of the United States serving at any time between July 4, 1965 and March 28, 1973 in Thailand, Laos, or Cambodia or the airspaces thereover in direct support of operations in Vietnam. See Manual of Military Decorations and Awards, 6-1 (Department of Defense Manual 1348.33-M, July 1990). Similarly, a RVCM was awarded to all service personnel within the cited theater, and it is not determinative of Vietnam or combat participation. See Army Regulation 672-5-1, 28. VAOPGCPREC 7-93 (O.G.C. Prec. 7-93) indicates that service in Vietnam for purposes of 38 C.F.R. § 3.313 does not include high altitude missions in Vietnamese airspace. VAOPGCPREC 27-97 indicates that service on a deep-water naval vessel off the shores of Vietnam may not be considered service in the Republic of Vietnam for purposes of the definition of "Vietnam era" in 38 U.S.C. § 101(29). Thus, the record does not conclusively show that the veteran had service in the Vietnam. More importantly, even if the veteran were to establish that his service involved duty or visitation in the Republic of Vietnam as required by law, the evidence shows that he has peripheral neuropathy of the lower extremities related to a service-connected disability and not otherwise related to his military service, and that he does not have peripheral neuropathy of the upper extremities that was manifest to a compensable degree within one year of service discharge or otherwise related to his military service. Service connection has been in effect for tarsal tunnel syndrome of the left foot and the right foot since 1986. Service medical records show no complaints or treatment for peripheral neuropathy of the lower extremities. However, the most recent VA medical opinion, dated in December 2001, clearly and unequivocally relates the peripheral neuropathy of the lower extremities is as likely as not related to the veteran's service-connected tarsal tunnel syndrome of the ankles. While the veteran has urged that peripheral neuropathy is related to herbicide exposure, the Board need not reach that question as to the lower extremities. The favorable VA opinion is sound, well-supported and not directly controverted by substantial probative evidence as to the lower extremities. Since service connection has been granted for the tarsal tunnel syndrome of the ankles, the Board finds service connection is in order for peripheral neuropathy of the lower extremities. See also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). As to the upper extremities, the Board notes that the veteran has in fact no persuasive medical evidence to support his assertion that peripheral neuropathy of the upper extremities currently exists and is related to service. Initially, the Board points out that the veteran's service medical records are negative for complaints or findings of peripheral neuropathy. In support of this claim, the veteran submitted a statement from R. Paul Chandler, D.O. who, in an April 1998 letter indicated that he had known the veteran for most of his life and who reported that he had been the veteran's family physician since 1980. He indicated that in 1971, the veteran began having some tingling in his feet and hands which was intermittent in nature. He also reported that VA physicians had diagnosed the veteran with peripheral polyneuropathy, and stated that as the veteran looked back now and reminisced, the veteran remembered the onset of the symptomatology. He stated that the veteran attributed the fact that he had the beginnings of the peripheral neuropathies as far back as 1971 and could be definitely associated with Agent Orange. His opinion was that service connection for peripheral neuropathy should be granted. However, not only does the above statement fails to indicate that he diagnosed the veteran as having peripheral neuropathy, he also is clearly merely reporting the veteran's recollections from 1971 as well as relating the veteran's opinion that he has peripheral neuropathy that began in 1971 and is related to exposure to Agent Orange. The Board finds this statement, when viewed in light of the remaining evidence insufficient to establish service connection for peripheral neuropathy of the upper extremities. In this regard, the Board notes that the evidence since service fails to show that he has peripheral neuropathy of the upper extremities that is related to service. A VA examination in December 1997 revealed no significant abnormality of the upper extremities and was normal despite the diagnosis of peripheral polyneuropathy. The upper extremities were not noted to manifest any relevant abnormalities during the December 2001 VA examination for peripheral nerves. The EMG report discussed in that examination report indicated normal bilateral median nerve condition velocities and distal latencies. There is no diagnosis as to the upper extremities in that examination report. Additionally, outpatient treatment records fail to show findings of peripheral neuropathy of the upper extremities, despite the veteran's assertions that the disorder affects his upper extremities and his head and neck as well as his feet. Further, the veteran's recollections regarding, in pertinent part, tingling of the hands and feet within the first year of service are insufficient to establish that he had peripheral neuropathy manifest to a compensable degree during any applicable presumptive period. Peripheral neuropathy of the upper extremities has not been linked by medical evidence to any service-connected disability. The VA examiner specifically noted that only the veteran's lower extremity neuropathy was related to service- connected disability. The Board emphasizes that the most recent EMG tests are negative and are not reported to be suggestive of current neuropathy of the upper extremities. Evidence of record supporting the veteran's claim as to the upper extremities includes his lay opinion including that as filtered through the 1998 opinion of the osteopath. The Board observes that that opinion simply included a recitation of the veteran's reported history and opinion as to Agent Orange exposure. However, the veteran's opinion is without probative value in regard to the issue at hand, as the veteran has not been shown to possess the medical training or expertise needed to render a competent opinion as to diagnosis or medical causation. See Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd, 142 F.3d 1434 (Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201 (1996); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Thus, in the absence of a current diagnosis or a medical opinion supporting the veteran's contention that he has peripheral neuropathy of the upper extremities related to his military service including Agent Orange exposure, the Board finds that the preponderance of the evidence is against the claim of service connection for peripheral neuropathy of the upper extremities. Therefore, his claim for that benefit must be denied. In reaching this determination, the Board acknowledges that the VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, that doctrine is not for application in this case because the preponderance of the evidence is against the veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107 (West Supp. 2001). ORDER Service connection for peripheral neuropathy of the lower extremities is granted. Service connection for peripheral neuropathy of the upper extremities is denied. S. L. KENNEDY Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.