Citation Nr: 1326141 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 08-09 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities, claimed as due to Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from January 1967 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was previously before the Board in March 2011 and was remanded for additional development. The Veteran presented testimony at a Videoconference hearing chaired by the undersigned Acting Veterans Law Judge in December 2009. A transcript of the hearing has been associated with the claims folder. In May 2013the Board requested a medical opinion from a neurologist with the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a) (2012) to address the Veteran's claim. An opinion in response to this request has been provided and has been associated with the Veteran's VA claims folder. Although neither the Veteran nor the RO has reviewed this evidence, the claim is being granted for the reasons stated below. Therefore, there is no prejudice in adjudicating the claim. FINDINGS OF FACT 1. The Veteran was exposed to herbicides during service. 2. The Veteran's bilateral peripheral neuropathy of the lower extremities has not been dissociated from his active service. CONCLUSION OF LAW Service connection for bilateral peripheral neuropathy of the lower extremities is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the favorable decision to grant the Veteran's claim, any deficiency as to VA's duties to notify and assist pursuant to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) is rendered moot. The Veteran in this case served on active duty from January 1967 to January 1971, including service in Korea from at least January 1969 to December 1969. The Veteran asserts that he suffers from peripheral neuropathy of the bilateral lower extremities, a condition that he attributes to herbicide exposure during his service in South Korea. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As noted in detail in the Board's March 2011 remand, VA has conceded that the Veteran was exposed to Agent Orange during his service in Korea. As is relevant here, a list of the diseases and conditions associated with herbicide exposure is found at 38 C.F.R. § 3.309(e) (2012). Though acute and subacute peripheral neuropathy are listed, the regulation is also clear that these conditions must appear "within weeks or months of exposure to an herbicide agent." Id., Note 2. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). In April 2011 the Veteran underwent a VA examination that resulted in a diagnosis of peripheral neuropathy restricted to L5 on the right distal big toe and neuritis/neuropraxia of the superficial peroneal/sural nerve of the right foot. As the examiner did not comment as to whether those diagnosed disabilities could have been the direct result of exposure to herbicides during service as discussed in Combee, in May 2013 the Board requested a medical opinion from a neurologist with the VHA to address the medical matters presented by this appeal. After a review of the evidence of record, the Board finds that service connection for bilateral peripheral neuropathy of the lower extremities is warranted. Considerable attention is given to the June 2013 VHA opinion. In that opinion, the June 2013 VHA physician, after noting the Veteran's medical history, indicated that the Veteran's neuropathy etiologies could be multifactorial, with toxins specifically enumerated as one of the pertinent etiologic factors. In the Board's view, the mention of toxins by the VHA physician, when read in the light most favorable to the Veteran, essentially means that the Veteran's bilateral peripheral neuropathy of the lower extremities has not been dissociated from his active service, in that exposure to Agent Orange has been conceded in this case. As for the probative value of the June 2013 VHA opinion, the Board notes that the opinion contained a review of the Veteran's medical records and assertions he has made in this case. The Board here notes that the June 2013 VHA physician was clearly aware that the Veteran had a history of exposure to Agent Orange during service. While it is true that the June 2013 VHA opinion listed toxins as just one possible or probable factor in the development of his peripheral neuropathy, the Board is unable to state, based on the opinion, that exposure to Agent Orange during service is not related to the Veteran's peripheral neuropathy. Therefore, some doubt remains as to whether the Veteran's peripheral neuropathy is at least as likely as not due to service as opposed to some other cause, and the Board will resolve that doubt in the favor of the Veteran. In summary, the Board finds that the competent evidence is in equipoise as to a nexus to service, any doubt is resolved in the Veteran's favor, 38 U.S.C.A. § 5107, Gilbert v. Derwinski, 1 Vet. App. 49 (1990), and service connection for bilateral peripheral neuropathy of the lower extremities is therefore warranted. ORDER Service connection for bilateral peripheral neuropathy of the lower extremities is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs