Citation Nr: 1336894 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 07-25 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for peripheral neuropathy of the feet, ankles, hands, and wrists, secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran had active military service from March 1969 to January 1972 and from July 1973 to December 1975, including service in Vietnam. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In December 2010 and January 2013, the Board remanded the claim for further development. For the reasons indicated below, the claim has been recharacterized. The issue of entitlement to service connection for hearing loss disability was raised by the Veteran in an April 2011 statement, but has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. 2. The evidence is at least evenly balanced as to whether the Veteran has peripheral neuropathy of the feet, ankles, hands, and wrists that is related to his presumed Agent Orange exposure. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, peripheral neuropathy of the feet, ankles, hands, and wrists was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1113, 1116, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. The Veteran asserts that he has a disability which is manifested by recurrent pain in multiple joints, including the feet, ankles, hands, and wrists. He has stated that he believes this pain to be related to his exposure to Agent Orange while serving in the Republic of Vietnam. In a January 2010 statement, the Veteran clarified that he is seeking entitlement to service connection for polyneuropathy. As the Veteran served in Vietnam, he is presumed to have been exposed to Agent Orange. There are certain diseases that are presumed service connected in veterans exposed to Agent Orange. One such disease at the time the Veteran filed his claim in this case was acute and subacute peripheral neuropathy. 38 C.F.R. § 3.309(e). Note 2 to 38 C.F.R. § 3.309(e) defined this disease as 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. § 3.307(a)(6)(ii) requires that peripheral neuropathy must become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to be presumed service connected. A recent amendment to the regulation replaces the term "acute and subacute peripheral neuropathy" with the term "early-onset peripheral neuropathy." VA also removed Note 2, with its requirement of that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset. See Disease Associated With Exposure to Certain Herbicide Agents: Peripheral Neuropathy, 78 Fed. Reg. 54763 (Sept. 6, 2013). The Veteran's peripheral neuropathy did not meet the criteria for establishing service connection on a presumptive basis for this disease under either the former or amended criteria. Significantly, however, the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). With regard to Agent Orange exposure, this means that a veteran who is presumed exposed to Agent Orange can show that a current disability, although not on the list of those presumed service connected in veterans exposed to Agent Orange, was actually caused by his Agent Orange exposure. Cf. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a Veteran from establishing service connection with proof of actual direct causation). For the following reasons, the Board finds that the Veteran has met the requirements for establishing entitlement to service connection on a direct incurrence basis. 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.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran has met the current disability requirement. VA treatment records indicate that he has been diagnosed with bilateral leg neuropathy. A December 2008 neurology note states that the Veteran had pain from lumbar radiculopathy and neuropathic pain from polyneuropathy. It also noted that he had two risk factors for polyneuropathy: heavy exposure to Agent Orange in Vietnam and the fact that he was pre-diabetic. In December 2009 the Veteran underwent a VA examination in which he complained of diffuse polyarthralgia in many joints. The examiner was unable to provide a specific diagnosis for the pain in the Veteran's hips, right knee, bilateral clavicles, bilateral legs, and bilateral ankles, but did state that he believed the Veteran's symptoms to be likely caused by a combination of pseudogout and neuropathy and that these conditions were independent of his lumbar spine disorder. Most recently, the February 2013 VA examiner diagnosed the Veteran with peripheral neuropathy of the feet, ankles, hands, and wrists. In addition, as noted above, the Veteran is presumed to have been exposed to Agent Orange. He has thus met the in-service event requirement. The only remaining question is whether his current disability is related to the in-service event. After reviewing the claims file and examining the Veteran, the February 2013 VA examiner noted that the Veteran likely had degenerative joint disease of the shoulders, hips, ankle, knee and wrist, but only found significant X-ray findings of arthritis in the knee, and opined that the Veteran's degenerative joint disease was not caused by exposure to Agent Orange. Significantly, however, he also wrote, "Agent Orange does cause peripheral neuropathy. He does have symptoms consistent with this in his feet/ankles as well as hands/wrists. . . . it is at least as likely as not that his neuropathy is associated with Agent Orange exposure." As the February 2013 VA examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). This opinion is consistent with the other evidence of record, including the statements of the Veteran's VA neurologist indicating that exposure to Agent Orange is a risk factor for developing neuropathy, and there is no contrary opinion in the evidence of record. The evidence is thus at least evenly balanced as to whether the Veteran's currently diagnosed peripheral neuropathy of the feet, ankles, hands, and wrists is related to his presumed Agent Orange exposure. As Board is required to resolved the reasonable doubt created by this relative equipoise in the evidence in favor of the Veteran, entitlement to service connection for peripheral neuropathy of the feet, ankles, hands, and wrists, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for peripheral neuropathy of the feet, ankles, hands, and wrists, secondary to Agent Orange exposure is granted. ____________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs