Citation Nr: 1626468 Decision Date: 07/01/16 Archive Date: 07/14/16 DOCKET NO. 13-31 099A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, including as due to herbicide exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the Veteran's claims for entitlement to service connection for peripheral neuropathy, feet and legs. The Veteran presented testimony at a May 2016 Board videoconference hearing presided over by the undersigned Veterans Law Judge. A transcript of the proceedings has been associated with the claims file. New evidence, including a private medical opinion, has been associated with the claims file since the most recent adjudication of this appeal in November 2013. As the Board is granting the Veteran's claim in the present adjudication, there can be no prejudice to the Veteran from the Board's consideration of this evidence in the first instance. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the Veteran's bilateral lower extremity peripheral neuropathy is etiologically related to his presumed herbicide exposure while serving on active duty in the Republic of Vietnam during the Vietnam War era. CONCLUSION OF LAW Affording the Veteran the benefit of the doubt, the criteria for service connection for peripheral neuropathy of the bilateral lower extremities have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2015). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the favorable determination herein, which grants service connection for peripheral neuropathy of the bilateral lower extremities, further discussion as to compliance with VA's duties to notify and assist with respect to this specific claim, including pursuant to 38 C.F.R. § 3.103(c)(2) and Bryant v. Shinseki, 23 Vet App 488 (2010), is rendered moot. Generally, service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). Service connection may also 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran asserts that he suffers from peripheral neuropathy of the bilateral lower extremities that was caused by his exposure to tactical herbicides while serving within the Republic of Vietnam (RVN) during the Vietnam War era. Letters from the Veteran's physicians, VA and private, have been associated with the claims file and confirm that the Veteran currently suffers from peripheral neuropathy of the bilateral lower extremities. The requirement of the existence of a current disability has thus been satisfied. A veteran who, during active military, naval, or air 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 during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.313(a); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of section 3.307(a)(6)(iii) as requiring the service member's presence at some point on the landmass or the inland waters of Vietnam). 38 C.F.R. § 3.307 was amended to include service between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period. See 38 C.F.R. § 3.307(a)(6)(iv). An inquiry to the Joint Services Records Research Center (JSRRC) confirmed that the Veteran had in-country service in RVN from June 1966 to June 1967. Thus, he is presumed to have been exposed to herbicides, including Agent Orange, in the course of such service. See 38 C.F.R. § 3.307 (2015). When a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for the following disorders: chloracne or other acneform disease consistent with chloracne, Type II Diabetes Mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, early-onset peripheral neuropathy, Parkinson's disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (2015). Although the Veteran testified at the May 2016 Board hearing that he first noticed symptoms in his legs not long after discharge from active service, but did not seek treatment until approximately 1999 or 2000 when he experienced a sudden increase in symptomatology, the Board finds such testimony inconsistent with the Veteran's prior statements indicating that he first noticed symptoms in approximately 1999 or 2000. Specifically, the Veteran wrote on his August 2010 claim form that he first started noticing tingling and numbness in his feet in 2000, and a private treatment record documenting the results of neurological evaluation of the Veteran noted that the Veteran reported symptoms starting approximately one year prior, when he awoke with pain, tingling, and numbness of both feet, particularly in the toes, extending up into the middle dorsum of his feet and into the soles. The Board finds the Veteran's earlier statement to his treatment providers to represent the more persuasive evidence, and therefore, a preponderance of the evidence is against a finding that the Veteran has "early-onset peripheral neuropathy," that became manifest to a degree of 10 percent or more within one year after the Veteran's last in-service herbicide exposure; service connection for peripheral neuropathy is therefore not warranted on a presumptive basis under 38 C.F.R. § 3.309(e). See 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 77 Fed. Reg. 47,924 (Aug. 10, 2012). The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, the fact that a veteran may not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection, as entitlement may alternatively be established on a non-presumptive, direct-incurrence basis. The Veteran has consistently stated that his physicians have conducted numerous tests over the years failing to identify an underlying cause for his peripheral neuropathy. The medical evidence associated with the file, though sparse, corroborates such assertions: an August 2000 private neurological evaluation report documents that nerve conduction studies, lab work, immunology testing, perineoplastic workup and medical history were all negative, and the consulting neurologist concluded that the Veteran was most-likely dealing with neuropathic pain from peripheral neuropathy, the "etiology of which is very unclear;" a September 2013 letter from the Veteran's VA treating physician labeled the Veteran's condition as "progressing idiopathic peripheral neuropathy;" and a June 2015 letter from the Veteran's private primary care physician stated that the workup for the source of the Veteran's neuropathy was normal. The Veteran's private physician wrote in the June 2015 letter that, while he could not say with certainty that the Veteran's exposure to Agent Orange was the cause of his peripheral neuropathy, as other causes had been ruled out, Agent Orange was left as "a possible and likely etiology of his peripheral neuropathy." There is therefore competent evidence of record that the Veteran's peripheral neuropathy is either idiopathic (arising spontaneously or with an unknown cause) or causally related to his presumed in-service exposure to Agent Orange. While further inquiry could be undertaken with a view towards development of the claim so as to obtain an additional medical opinion on this matter with a more robust discussion of the rationale behind the conclusion reached, the Board finds that the weight of the evidence has at least reached the point of equipoise as to allow for resolution of doubt in the Veteran's favor regarding the question of causation. In summation, a preponderance of the evidence demonstrates that the Veteran has been diagnosed with peripheral neuropathy of the bilateral lower extremities during the relevant appeal period, he is presumed to have been exposed to tactical herbicides while serving within the Republic of Vietnam during the Vietnam War era, and the evidence is at least in equipoise regarding the question of an etiological connection between the former and the latter. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for peripheral neuropathy of the bilateral lower extremities is warranted on a direct basis. See 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990) . ORDER Service connection for peripheral neuropathy of the bilateral lower extremities is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs