Citation Nr: 1440586 Decision Date: 09/11/14 Archive Date: 09/18/14 DOCKET NO. 12-31 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah VanderWood, Associate Counsel INTRODUCTION The Veteran served on active duty for training from April 1961 to January 18, 1962, and on active duty from January 19, 1962, to September 1966. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in May 2014. A transcript of the proceeding is of record. The record before the Board consists of the Veteran's paper claims file and electronic records within Virtual VA. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). FINDING OF FACT The Veteran's peripheral neuropathy of the lower extremities is due to in-service herbicide exposure. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy of the lower extremities have been met. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.3.04, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate the claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013) or 38 C.F.R. § 3.159 (2013). Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service, the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1116 ; 38 C.F.R. § 3.307 , 3.309(e). The exceptions to this rule include acute and subacute peripheral neuropathy, which must be manifested within a year of the last exposure to an herbicide agent during service. 38 C.F.R. § 3.307 (a)(6)(ii). Notwithstanding the foregoing presumption provisions, 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 Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Thus, presumption is not the sole method for showing causation. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran contends that service connection is warranted for peripheral neuropathy of his lower extremities because it was caused by Agent Orange exposure during service. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange during service. His service treatment records are negative for evidence of peripheral neuropathy. He reported to a private physician in April 2009 that he had had coldness and numbness in his feet since December 2008. The physician diagnosed polyneuropathy. A May 2010 report following an Agent Orange Registry evaluation indicates that the Veteran's diagnosis of peripheral neuropathy was recognized by VA as being associated with Agent Orange exposure. The Veteran alleged in a July 2010 statement that his peripheral neuropathy had definitely been with him for a long, long time, slowly but surely developing into what was now an 80 to 85 percent loss of feeling in his feet and legs. His feet had been tender for his entire adult life, and he finally sought treatment when he began to have no feeling in his feet. In a July 2011 statement, the Veteran claimed that two years ago, when the numbness in his feet became severe, he was told the condition may be hereditary. However, subsequent genetic testing was inconclusive. In a November 2011 statement, a private physician opined that the Veteran's peripheral neuropathy may be related to Agent Orange exposure many years ago. The Veteran contended in a December 2011 statement that he was not aware of his condition until 2008, when he had lost 80 to 85 percent of the feeling in his lower extremities. However, he believed that his condition had definitely been a gradual loss of feeling over time that he just lived with, so the progression of the condition became acute without his realizing it. In June 2014, the physician who wrote the November 2011 statement added that she felt that the Veteran's peripheral neuropathy was consistent with the neuropathy that had been shown to be caused Agent Orange exposure. Therefore, she believed the Veteran's neuropathy was consistent with the cause and effect of Agent Orange exposure. Following its review of all of the evidence the Board has determined that the Veteran is entitled to service connection for peripheral neuropathy of the lower extremities because the evidence satisfactorily establishes that the claimed disability was caused by his exposure to Agent Orange. In reaching this decision, the Board notes that, while the Veteran's peripheral neuropathy did not manifest to a compensable degree within a year of his last herbicide exposure during service, his physician opined that it was consistent with the neuropathy that had been shown to be caused Agent Orange exposure. Although another physician stated that it could be a genetic condition, further testing was inconclusive, and there is no corroborating evidence supporting the contention. Finally, the Veteran has credibly stated on several occasions that his feet had been tender throughout his adult life and that his condition had progressively worsened over time. Based on the foregoing, the Board has determined that the evidence is at least in equipoise and, therefore, applying the benefit-of-the-doubt doctrine, service connection for peripheral neuropathy is warranted. ORDER Service connection for peripheral neuropathy of the lower extremities is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs