Citation Nr: 1805861 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-04 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD I. Umo, Associate Counsel INTRODUCTION The Veteran served active duty in the U.S. Army from August 1969 to September 1971. He served in Vietnam and was awarded the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This case was previously before the Board in May 2015, where the issue on appeal was remanded for further evidentiary development. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents during his period of service. 2. The Veteran's peripheral neuropathy of the bilateral lower extremities was caused by his exposure to herbicide agents during service. 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 The Veteran seeks service connection for peripheral neuropathy of the bilateral lower extremities, which he contends was caused by exposure to herbicide agents in Vietnam. See, e.g., November 2011 VA 21-526b. 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). 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 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 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, 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 many years after service as a result of exposure to herbicide agents in service. The Veteran served in Vietnam from August 1970 to September 1971. Accordingly, he is presumed to have been exposed to herbicide agents during his period of service. VA treatment records from October 2011 note complaints of numbness and foot pain. An April 2012 primary care note also reflects the Veteran's complaints that his feet were "still burning." Treatment records dated only a few days later include a diagnosis of axonal peripheral neuropathy from a VA neurologist with negative work up for cause. The same record noted that there was a "possibl[e] Agent Orange connection." On VA examination in July 2014, the Veteran reported that about three to four years ago, he began to develop numbness and tingling and cold feelings in his feet. He explained that the tingling and numbness had progressed to a burning and stinging sensation in his feet bilaterally. The examining physician, Dr. S.K., reported there was a question of borderline diabetes, but that no definitive diagnosis had been made and that hemoglobin A1Cs was unremarkable. Dr. S.K. further indicated that workups for other etiologies of the Veteran's neuropathy were negative as well. After completing the examination, Dr. S.K. diagnosed sensory peripheral neuropathy. Dr. S.K. explained that the Veteran's sensory peripheral neuropathy was idiopathic, and that although Agent Orange exposure was claimed, there was no known etiology to his peripheral neuropathy. Dr. S.K. stated that Agent Orange "has not been completely felt to be related to neuropathy and, so, a definitive relationship to this cannot be made at this time." Dr. S.K.'s opinion is inadequate as he failed to comment on the remarks made by the April 2012 neurologist who suggested the neuropathy was due to Agent Orange exposure. He also rendered his opinion using a standard higher than that required by law. Indeed, a "definitive" relationship between the Veteran's peripheral neuropathy and herbicide exposure is not required to grant service connection, rather one that is as likely as not. In an October 2014 opinion, another VA physician, Dr. S.E. opined that while the Veteran "may have been exposed to agent orange, we have no medical data linking such exposure with development of peripheral neuropathy." Thus, Dr. S.E. concluded that "it is less likely than not that the Veteran's peripheral neuropathy is due to possible Agent Orange exposure." The Board notes, however, that this particular opinion is given reduced probative value as Dr. S.E. did not review all pertinent evidence, as VA regulations have linked Agent Orange exposure to the development of early-onset peripheral neuropathy. See 38 C.F.R. § 3.309(e); see also Disease Associated with Exposure to Certain Herbicide Agents: Peripheral Neuropathy, 78 Fed. Reg. 54763 (Sept. 6, 2013). Moreover, as noted above, the Veteran's exposure to herbicide agents has been conceded and not just "possible", As Dr. S.E. contends. In December 2014, Dr. S.E. provided another addendum opinion where she stated that after a more thorough review of the April 2012 neurologist's opinion and the Veteran's file, it does appear that Agent Orange is a potential cause of the Veteran's neuropathy and no other causes have been identified. Thus, she amended her previous opinion of October 2014, and opined that it is at least as likely as not that the current peripheral neuropathy is related to exposure to Agent Orange. Dr. S.E.'s opinion is competent, credible, and given significant probative value based on her review of the entirety of the claims file and adequate rationale. In a July 2015 Peripheral Nerves Conditions DBQ, the Veteran reported that his peripheral neuropathy symptoms started about five years ago when he noticed burning and freezing sensation. On examination, Dr. J.G.S. confirmed that the Veteran has lower extremity sensory neuropathy involving all distal nerve fibers. In contrast to Dr. S.E., Dr. J.G.S. opined that the peripheral neuropathy was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He reasoned that although the statements from Dr. K. raise the possibility of Agent Orange as a cause for the Veteran's sensory neuropathy, the statement in July 2014 indicates that the neuropathy is of idiopathic, or unknown, etiology. Dr. J.G.S. added that it should be noted that VA considers neuropathy to be of Agent Orange etiology only if it occurs within one year of exposure. He further commented that the onset of the Veteran's neuropathy was about forty years after exposure, so it cannot be considered as secondary to Agent Orange. There are at least two flaws with Dr. J.G.S.'s opinion that reduce its probative value. First, Dr. J.G.S. used legal reasoning as rationale for his negative nexus opinion. His rationale was not based on medical principles but based on VA regulations regarding diseases subject to presumptive service connection. Second, Dr. J.G.S. failed to review all the evidence of record, specifically, the December 2014 opinion from Dr. S.E. He only commented on the statements from the April 2012 neurologist and Dr. S.K.'s July 2014 opinion. Given the issues with the opinion, the Board affords it reduced probative value. Therefore, as Dr. J.G.S.'s opinion does little to controvert Dr. S.E.'s positive nexus opinion, the Board finds that service connection for bilateral lower extremity peripheral neuropathy is warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is granted. ______________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs