Citation Nr: 1806054 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-08 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the upper extremities, to include as due to in-service exposure to an herbicide agent. 2. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to in-service exposure to an herbicide agent. 3. Entitlement to service connection for cervical myelopathy, to include as due to in-service exposure to an herbicide agent. 4. Entitlement to service connection for restless leg syndrome, to include as due to in-service exposure to an herbicide agent. 5. Entitlement to service connection for a disability manifested by tremors, to include as due to in-service exposure to an herbicide agent. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Scott W. Dale, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to April 1971, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran expressed timely disagreement with this denial, and the present appeal ensued. The issues of entitlement to service connection for cervical myelopathy, restless leg syndrome, and a disability manifested by tremors, all to include as due to in-service exposure to an herbicide agent, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The most probative competent evidence demonstrates that it is at least as likely as not that the Veteran's peripheral neuropathy of the upper extremities is the result of the Veteran's service, to include his presumed in-service exposure to an herbicide agent. 2. The most probative competent evidence demonstrates that it is at least as likely as not that the Veteran's peripheral neuropathy of the lower extremities is the result of the Veteran's service, to include his presumed in-service exposure to an herbicide agent. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the upper extremities have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1154 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 2. The criteria for service connection for peripheral neuropathy of the lower extremities have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1154 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Because the issues decided herein are being granted to the fullest extent allowable by the Board, there is no need to review whether VA's statutory duties to notify and assist are fully satisfied, as any error would be non-prejudicial. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011); see also Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999), D'Aries v. Peake, 22 Vet. App. 97 (2008). See also Bryant v. Shinseki, 23 Vet. App. 488 (2010). Service connection and herbicide exposure Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2012). A Veteran 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 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). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Amyloidosis, chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; all chronic B cell leukemia (including, but not limited to hairy cell leukemia and chronic lymphocytic leukemia), Parkinson's disease, multiple myeloma; non-Hodgkin's lymphoma; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 75 Fed. Reg. 53202 (August 31, 2010), 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Analysis The Veteran asserts that he has peripheral neuropathy of the upper and lower extremities that are the result of his service, to include exposure to an herbicide agent while stationed in the Republic of Vietnam. It is uncontroverted that the Veteran record reflects diagnoses of peripheral neuropathy of the upper and lower extremities, and because the Veteran served in the Republic of Vietnam, in-service exposure to an herbicide agent is presumed. To that, elements (1) and (2) necessary to establish service connection have been amply demonstrated. The Board observes that, during the pendency of the appeal, the AOJ denied these issues because the evidence did not show that the Veteran's peripheral neuropathy was first diagnosed until many years after service, not qualifying as "early-onset" under the meaning of the controlling law, and because the disability was not manifested to the degree of the criteria for a 10 percent evaluation within one year of his in-service exposure to an herbicide agent. However, the Board notes that controlling regulations and precedential case law 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). In sum, the issues were denied by the AOJ without providing him a VA examination because service connection could not be established presumptively. While the Board notes that the AOJ's actions violate VA's duty to assist the Veteran; however, for the reasons recounted below, the Board concludes that the additional delaying resulting from remanding these issues to cure the deficiencies is avoidable. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). With the above in mind, the Board notes that there are two medical nexus opinions of record, and both are in favor of establishing service connection for the claimed disabilities. Specifically, the Veteran's treating VA clinician and private chiropractor opined in November 2013 and March 2014 statements, respectively, that it was at least as likely as not that the Veteran's peripheral neuropathy of the upper and lower extremities was the result of his in-service exposure to herbicide agents - namely, Agent Orange. In the present case, both opining medical professionals were fully aware of the Veteran's service and medical history, and the opinion is congruent with the medical and lay evidence of record. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 10 Vet. App. 297, 284 (1997). There is no medical evidence contrary to these opinions. In light of above, the Board finds that the favorable opinions are adequate for the purpose of adjudicating these issues, and there is no medical nexus evidence to the contrary. As such, element (3) is demonstrated regarding both issues, and the evidence reflects that the Veteran's peripheral neuropathy of the upper and lower extremities is due to his presumed in-service exposure to an herbicide agent, and thus, service connection for bother disabilities is warranted. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2017); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). ORDER Entitlement to service connection for peripheral neuropathy of the upper extremities, to include as due to exposure to an herbicide agent, is granted. 2. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to exposure to an herbicide agent, is granted. REMAND Although further delay is regrettable, the Board concludes that additional development is necessary in order for VA to fulfill its duty to assist the Veteran and give him every opportunity to substantiate the issues remaining on appeal. As with the issues decided above, while the record reflects diagnoses of cervical myelopathy, restless leg syndrome, and tremors, and presumed in-service exposure to an herbicide agent, the AOJ denied service connection because the claimed disabilities could not be granted presumptively without providing the Veteran a VA examination to address direct service connect, as per the Federal Circuit Court's holding in Combee. However, unlike the issues granted by the Board, the Veteran has not overcome the AOJ's failure to assist him in this fashion by submitting medical nexus evidence in support of these issues. As such, the Board concludes that these issues must be remanded so that the AOJ can fulfill VA's duty to assist him in substantiating his appeal by providing him a VA examination and obtaining medical opinions to discern whether any of the Veteran's disabilities remaining on appeal are proximately due to or the result of his service, to include his presumed in-service exposure to an herbicide agent while stationed in the Republic of Vietnam, as per the Federal Circuit's holding in Combee. As these issues are being remanded for other matters, as described above, the Board also concludes that update VA treatment records for the VA Medical Centers (VAMCs) in Columbia and Kansas City, Missouri, should be obtained and associated with the file so that the VA examiner can premise their opinions on the totality of the medical evidence under VA's constructive possession. Accordingly, the case is REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA treatment from the VAMCs in Columbia and Kansas City, Missouri, and all associated facilities. 2. Thereafter, the AOJ must schedule the Veteran for a neurological examination to determine the etiology of cervical myelopathy, restless legs syndrome and tremors. A copy of the file must be made available to and reviewed by the examiner. For each disability, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability is proximately due to or the result of any incident of his service, to include his presumed exposure to an herbicide agent. Any stated opinion should be supported by a complete rationale. The examiner and AOJ are reminded that an extended time period between in-service herbicide exposure and the initial onset of a disability is not fatal to finding a medical nexus between the two. 3. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending issues in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs