Citation Nr: 1035131	
Decision Date: 09/17/10    Archive Date: 09/21/10

DOCKET NO.  07-25 614	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, 
Arizona


THE ISSUES

1.  Entitlement to service connection for peripheral neuropathy 
of the right lower extremity.

2.  Entitlement to service connection for peripheral neuropathy 
of the left lower extremity.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant, B.C., and R.M.



ATTORNEY FOR THE BOARD

L. J. Vecchiollo, Counsel


INTRODUCTION

The Veteran served on active duty from March 1965 to January 
1969.  

This matter came before the Board of Veterans' Appeals (Board) on 
appeal from an April 2006 rating decision from the Phoenix, 
Arizona, Department of Veterans Affairs (VA) Regional Office 
(RO).  The Veteran testified at a hearing at the RO before the 
undersigned in August 2009.  A transcript of the proceeding is of 
record. 


FINDINGS OF FACT

1.  The Veteran served on active duty in the Republic of Vietnam 
during the Vietnam era.

2.  The Veteran's peripheral neuropathy of the right lower 
extremity is due to inservice herbicide exposure.

3.  The Veteran's peripheral neuropathy of the left lower 
extremity is due to inservice herbicide exposure.


CONCLUSIONS OF LAW

1.  The criteria for service connection for peripheral neuropathy 
of the right lower extremity have been met.  38 U.S.C.A. §§ 1101, 
1110, 1112, 1113, 1116 (West 2002 & Supp. 2010); 38 C.F.R. §§ 
3.303, 3.307, 3.309 (2009).

2.  The criteria for service connection for peripheral neuropathy 
of the left lower extremity have been met.  38 U.S.C.A. §§ 1101, 
1110, 1112, 1113, 1116 (West 2002 & Supp. 2010); 38 C.F.R. §§ 
3.303, 3.307, 3.309 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran's service treatment records are negative for any 
findings, complaints, or treatment of peripheral neuropathy.  The 
Veteran has stated that his peripheral neuropathy, which started 
in the 1980's, is the result of his exposure to herbicides in 
Vietnam.

Regarding veterans who served in Vietnam, certain diseases are 
presumed to have been incurred in or aggravated by service due to 
herbicide exposure if they have manifested to a compensable 
degree at any time after service.  38 U.S.C.A. § 1116; 38 C.F.R. 
§§ 3.307(a)(6)(ii), (iii).  Personnel records show that the 
Veteran served in the Republic of Vietnam.  Therefore, exposure 
to herbicides is presumed.  The determinative issue is whether 
any his peripheral neuropathy and associated symptoms are related 
to this exposure.  Acute and subacute peripheral neuropathy shall 
have become manifest to a degree of 10 percent or more within one 
year after the last date on which the veteran was exposed to an 
herbicide agent during active military, naval, or air service.  
38 C.F.R. § 3.307(a)(6)(ii).

There is no competent evidence that acute or subacute peripheral 
neuropathy became manifest to a degree of 10 percent or more 
within one year after the last date on which the Veteran was 
exposed to an herbicide agent.  See 38 C.F.R. § 3.307(a)(6)(ii).  
Therefore, service connection is denied on a presumptive basis 
under 38 U.S.C.A. § 1116.

Even where, as here, service connection is claimed and denied on 
a presumptive basis, consideration must be given to whether the 
Veteran is entitled to service connection on a direct incurrence 
basis regarding his bilateral peripheral neuropathy.  Combee v. 
Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).

Service connection may be granted for a disability resulting from 
personal injury suffered or disease contracted in line of duty or 
for aggravation of preexisting injury suffered or disease 
contracted in line of duty.  38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. 
§§ 3.303, 3.304.  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.

To establish service connection for a disability, 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) competent evidence of a nexus between the current disability 
and the in-service disease or injury.  Pond v. West, 12 Vet. App. 
341, 346 (1999).

A VA progress note in November 2007 diagnosed neuropathy due to 
Agent Orange.  There is no contradictory medical evidence of 
record.

As the three elements of the Pond test, (a current diagnosis of a 
disability and a competent medical opinion finding that the 
current disability is related to an inservice event, exposure to 
herbicides) have been met, service connection for peripheral 
neuropathy of the right and left lower extremities is warranted.  

As all the issues on appeal have been resolved in favor of the 
Veteran, it is not necessary to consider whether all applicable 
requirements of the VA's duties to notify and assist the Veteran 
have been satisfied.




ORDER

Entitlement to service connection for peripheral neuropathy of 
the right lower extremity is granted.

Entitlement to service connection for peripheral neuropathy of 
the left lower extremity is granted.






____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs