Citation Nr: 0003870 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 95-39 361 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for peripheral neuropathy as secondary to Agent Orange (AO) exposure. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and friend ATTORNEY FOR THE BOARD D. Odlum, Associate Counsel INTRODUCTION The veteran had active military service from August 1966 to July 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 1994 rating decision from the Los Angeles, California Department of Veterans Affairs (VA) Regional Office (RO). In December 1994, the veteran requested a local hearing before the Board. In June 1995, the veteran appeared to change his request to a local hearing. A local hearing was held in September 1995. In May 1997, the veteran was asked to clarify whether he wanted a local hearing before the Board. The veteran did not respond to this request. The Board concludes that this effectively constitutes a withdrawal of his request for a local hearing before the Board. In February 1996, the RO denied entitlement to service connection for post-traumatic stress disorder (PTSD) and chloracne as secondary to AO exposure. This decision was not appealed and it became final. 38 C.F.R. § 20.302 (1999). In October 1998 the Board remanded this case for further development. The case has since been returned to the Board for further appellate review. FINDINGS OF FACT 1. All available relevant evidence necessary for an equitable disposition of the veteran's service connection claim has been obtained by the RO. 2. The probative medical evidence of record shows that the veteran's peripheral neuropathy cannot satisfactorily be dissociated from exposure to AO in active service. CONCLUSION OF LAW Peripheral neuropathy was incurred in active service as secondary to AO exposure. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303(d), 3.307(a)(6) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran's DD Form 214 shows that he served in the United States Army from August 1966 to July 1968. His specialty was chemical staff specialist. He was awarded the Vietnam Service Medal, Vietnam Campaign Medal, an Air Medal with five Oak Leaf Clusters, and an Army Commendation Medal (ARCOM). Available service medical records do not document a diagnosis of peripheral neuropathy. Post-service medical records show that the veteran underwent an AO examination in April 1989. There is no documentation of a diagnosis of peripheral neuropathy in these records. On VA examination in April 1992 the veteran reported that he frequently prepared AO and participated in AO spraying operations while he was in Vietnam. He reported periodically developing nausea and vomiting while working with various chemical agents, but did not develop any persistent symptoms. He reported developing numbness over his left mid-thoracic area two years prior, and intermittent numbness of the flexor and extensor surfaces of the forearms and the dorsal and ventral surfaces of the hands for the past 10 years. No specific cause of such numbness was determined on examination. The veteran reported essentially the same history on VA examination in January 1994, except that the frequency of the symptoms had been increasing since the last VA examination. Examination revealed decreased pin prick sensation in the mid-thoracic region. No specific conclusion regarding the etiology or nature of his condition was documented. In September 1994 the veteran was admitted to the Los Angeles VA Medical Center (VAMC) for numbness and weakness. Sensory examination revealed marked decrease in vibration and touch as well. There was also a decrease in pinprick over the upper and lower extremities. The impression was peripheral neuropathy and the veteran was admitted for a neurological work-up. The pertinent discharge diagnoses noted by Dr. BOO were peripheral neuropathy (rule out sequelae of exposure to AO or dioxin) and a mild sensory ataxia secondary to peripheral neuropathy. In an undated letter, Dr. BOO wrote that he had treated the veteran in September and October 1994 and saw him again in March 1995 as an outpatient. He noted that the final diagnoses were, in pertinent part, toxic peripheral neuropathy probably secondary to dioxin or AO exposure, and mild sensory ataxia secondary to peripheral neuropathy. During a September 1995 local hearing, the veteran contended that his peripheral neuropathy was secondary to AO exposure while in the service. He indicated that he had been experiencing symptoms of peripheral neuropathy for several years, but that it had recently become much more pronounced. Transcript (September 12, 1995). Criteria Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. The United States Court of Appeals for Veterans Claims (Court) has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). The Court has held that a well-grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Continuous service for 90 days or more during a period of war, and post-service development of a presumptive disease to a degree of 10 percent within one year from the date of termination of such service, establishes a presumption that the disease was incurred in service. 38 C.F.R. §§ 3.307, 3.309 (1999). In addition to law and regulations regarding service connection, the Board notes that a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) (1999) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during such period of service. 38 C.F.R. § 3.307(a) (1999). If a appellant was exposed to a herbicide agent during such 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 though there was 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: Chloracne or other acneiform disease consistent with chloracne; Hodgkin's disease; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; Porphyria cutanea tarda; Prostate cancer; Multiple myeloma; Respiratory cancers (cancers of the lung, bronchus, larynx or trachea); or Soft tissue sarcoma. 38 C.F.R. § 3.309(e) (1999). 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 a herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e) (1999). These diseases shall become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other disease consistent with chloracne, and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the appellant was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (1999). The Secretary has also determined that there was no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted. 59 Fed. Reg. 57589 (1996) (codified at 38 C.F.R. §§ 3.307, 3.309). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required 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 or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt doctrine in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis Initially, the Board finds that the veteran's claim for service connection for peripheral neuropathy is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The service records establish that the veteran served in Vietnam as a chemical staff specialist and he has contended that he was exposed to AO; he has a current disability of peripheral neuropathy; and Dr. BOO concluded that such peripheral neuropathy was probably due to exposure to dioxin or AO exposure. After reviewing the record, the Board is satisfied that all relevant facts have been properly developed. The record is devoid of any indication that there are other relevant records available which might pertain to the issue on appeal. The Board therefore finds that all indicated development has been completed, and VA has satisfied its duty to assist the appellant. 38 U.S.C.A. § 5107(a). In this regard, a review of the record indicates that the development requested by the Board in its October 1998 remand has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the RO by October 1998 letter, afforded the veteran the opportunity to identify additional treatment records which were pertinent to his claim. He did not respond to this request. The record also shows that the RO scheduled a VA examination for August 1999. The record indicates that the veteran failed to report for this examination. When a veteran fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated on the basis of the evidence of record. 38 C.F.R. § 3.655 (1999). The veteran has submitted no statements explaining his failure to report for the most recent August 1999 VA examination. There is no other evidence in the record which would indicate good cause. Nor did the veteran request another VA examination. As the record has failed to show good cause for the veteran's failure to report to the August 1999 VA examination, and the veteran has not requested another examination, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (1999). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the veteran in developing the facts pertinent to his claim is required to comply with the duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(a). Following a review of the pertinent evidence of record, the Board finds that the evidence is evenly balanced as to require application of the benefit of the doubt in favor of the veteran's claim. Gilbert, 1 Vet. App. at 56. The Board initially notes that there is no medical evidence indicating that the veteran manifested acute or subacute peripheral neuropathy to a degree of 10 percent within weeks or months of exposure that resolved within two years from onset. There is no documentation in general of peripheral neuropathy manifesting itself shortly after his discharge. Presumptive service connection for peripheral neuropathy is therefore not warranted. 38 C.F.R. §§ 3.307(a)(6), 3.309(e); however, direct service connection for peripheral neuropathy is warranted. The veteran's service records show that he served in Vietnam and that he was a chemical staff specialist. He has reported handling and spraying AO. Such contentions are consistent with his military history. He has consistently reported his history of exposure to AO. The veteran has been diagnosed with peripheral neuropathy. Dr. BOO of the Los Angeles VAMC gave the veteran a final diagnosis of peripheral neuropathy probably secondary to dioxin or AO exposure. While Dr. BOO's opinion was not a definite conclusion, he nevertheless indicated that the veteran's peripheral neuropathy was probably secondary to herbicide exposure. His conclusion appears to be consistent with the record as a whole, and there is no medical (including medical opinions) evidence or other evidence of record which contradicts his conclusion. Based upon a full review of the record, the Board finds that there is an approximate balance of the positive and negative evidence, and that the veteran is entitled to the benefit of the doubt. Alemany v. Brown, 9 Vet. App. 518, 520 (1996) (citing Gilbert, supra, at 53). Accordingly, the Board concludes that peripheral neuropathy was incurred during active service as a result of exposure to AO. ORDER Entitlement to service connection for peripheral neuropathy as secondary to AO exposure is granted. RONALD R. BOSCH Member, Board of Veterans' Appeals