Citation Nr: 1800698 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 16-13 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to herbicide agent exposure. REPRESENTATION Veteran represented by: Penelope E. Gronbeck, Attorney WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD I. Umo, Associate Counsel INTRODUCTION The Veteran served active duty in the U.S. Army from January 1951 to August 1952, and active duty service in the U.S. Navy from July 1953 to March 1972. The Veteran had service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran filed his notice of disagreement in February 2015, and timely filed his substantive appeal in March 2016. The Veteran had a hearing before the undersigned Veterans Law Judge (VLJ) in October 2017. A transcript of that proceeding has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACTS 1. The Veteran is presumed to have been exposed to certain herbicide agents during his period of service. 2. The Veteran's peripheral neuropathy of the bilateral lower extremities is related to active service, to include as a result of exposure to herbicide agents therein. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy of the bilateral lower extremities have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify & Assist The VCAA and its implementing regulations describe, in part, VA's legal duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). This appeal has been considered with respect to VA's duties to notify and assist. However, given the favorable outcome in this decision represents a full grant of the issue at hand, further explanation of how VA has fulfilled its obligations is not necessary. Service Connection Claim The Veteran seeks service connection for peripheral neuropathy of the bilateral lower extremities, which he says was caused by exposure to herbicide agents during military service. See, e.g., February 2015 Correspondence. 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Additionally, 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. §§ 1116; 38 C.F.R. § 3.307. VA has interpreted that regulation to mean that the presumption of service connection applies to those service members who physically set foot in the Republic of Vietnam. See Haas v. Peake, 544 F.3d 1306, 1308 (Fed. Cir. 2008). If a veteran was exposed to a 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 (except for chloracne and early-onset peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during 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. § 1112; 38 C.F.R. § 3.307, 3.309(e). One such disease at the time the Veteran was diagnosed with his peripheral neuropathy 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, 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). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran contends that he developed peripheral neuropathy due to exposure to Agent Orange during his active duty service. However, the Veteran's service treatment records are negative for a diagnosis of peripheral neuropathy or symptoms thereof. Moreover, on his January 1972 retirement examination and report of medical history, the Veteran's lower extremities, except feet, and neurological systems were normal. Nevertheless, the RO has conceded the Veteran's exposure to Agent Orange, based evidence from the Army Joint Services Records Research Center and the Veteran's lay statements. See April 2015 Rating Decision. Accordingly, he is presumed to have been exposed to certain herbicide agents during his period of service. August 2012 EMG and NCV study findings showed electrophysiological evidence indicative of moderately severe sensorimotor peripheral neuropathy that was predominantly axonal. The diagnosis was an unspecified hereditary and idiopathic peripheral neuropathy. In a September 2016 VA examination, the VA physician opined that the Veteran's bilateral lower extremity sensorimotor polyneuropathy is at least as likely as not due to exposure to Agent Orange while he was in service. The physician reasoned that the Veteran's evaluation supports the diagnosis of bilateral lower extremity sensorimotor polyneuropathy. Additionally, the Veteran's medical records document exposure to Agent Orange while serving in Vietnam, and the VA has conceded that Agent Orange exposure is a cause of neuropathy. Likewise, in an August 2017 private medical opinion, an orthopedic surgeon opined that bilateral peripheral neuropathy is more likely than not related to both Agent Orange exposure and service-connected bilateral epicondylitis of the elbows. The physician reasoned that based on a review of the Veteran's medical record and history, and his reported exposure to Agent Orange in Vietnam when he was stationed in Da Nang Harbor, it is more likely than not that the Veteran's current bilateral peripheral neuropathy is related to Agent Orange exposure. Therefore, the Board finds that service connection for bilateral lower extremity peripheral neuropathy is warranted. As discussed above, the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange. Stefl, 21 Vet. App. 120 (2007). Here, the most probative evidence that directly addresses the Veteran's contention that his bilateral lower extremity peripheral neuropathy onset due to herbicide exposure in service does, in fact, find that it is as likely as not that the Veteran's peripheral neuropathy onset due to his herbicide exposure in service. Thus, the Board must conclude that the Veteran's current bilateral lower extremity peripheral neuropathy onset due to Agent Orange/herbicide exposure in service. Accordingly, service connection for bilateral lower extremity peripheral neuropathy is warranted. ORDER Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is granted. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs