Citation Nr: 18149270 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 14-38 187 DATE: November 9, 2018 REMANDED Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from February 1968 to February 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. When the Veteran filed his October 2014 substantive appeal to the Board (VA Form 9), he requested the opportunity to present testimony at a videoconference hearing before a Veterans Law Judge (VLJ). In a July 2018 Report of General Information, the Veteran requested that his hearing request be withdrawn. As such, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. The Veteran has claimed exposure to herbicides while stationed in Thailand. VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam War were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. However, this applies only during the Vietnam War Era, from February 28, 1961, to May 7, 1975. In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The Veteran served in Thailand during the Vietnam War and has provided credible evidence that as part of his duties as an aircraft mechanic he disposed of materials along the perimeter of the base. For instance, the Veteran’s service personnel records confirm that he was stationed at U-Tapao Air Force Base in Thailand from September 10, 1971 to September 9, 1972 during the Vietnam War Era. In-service performance reports from this period reflect that he was a “maintenance flight member” and that his duties included the following: performing launch, recovery, defuel, refuel, and phase inspections on assigned aircrafts; performing the servicing of oil and water; and assisting in the performance of towing operations and the training of newly assigned personnel. Additionally, the Veteran asserts that he was on the flight line every day and that “we went out the [perimeter] fence every day.” See March 2012 notice of disagreement. He further states, “My job in the service put me near the fence every day.” See October 2014 substantive appeal to the Board (VA Form 9). The Board finds no reason to doubt the credibility of the Veteran’s statements. Therefore, he is presumed to have been exposed to Agent Orange during his military service. Turning to the claim on appeal, the Veteran essentially contends that his bilateral lower extremities peripheral neuropathy is related to his military service and specifically to herbicide exposure. The Board notes that early onset peripheral neuropathy is a disease associated with exposure to certain herbicide agents. See 38 C.F.R. § 3.309(e). Under the most recent VA amendments in September 2013, peripheral neuropathy must become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicide agents to qualify for the presumption of service connection. 78 Fed. Reg. 54, 763-01, 54,764 (September 3, 2013). As the Veteran’s last date of service in Thailand was in September 1972, and the Veteran claims that his symptoms of peripheral neuropathy (tingling and burning in his feet and numbness in his legs) began in 2003 or 2004, the Veteran’s diagnosis of peripheral neuropathy does not qualify as “early onset” and does not warrant the herbicide exposure presumption under 38 C.F.R. § 3.309(e). See May 2011 claim (bilateral leg neuropathy began in 2004); cf. August 2003 VA treatment record (indicating that the Veteran had past medical history of peripheral neuropathy but also serving as the first notation of a peripheral neuropathy diagnosis in the medical evidence of record); see also February 2018 VA examination report (Veteran reported that he had been taking neuropathy medication for 12-15 years). However, even though the Veteran is not entitled to service connection on the basis of the presumption in 38 C.F.R. § 3.309, VA must still consider whether the Veteran’s peripheral neuropathy is causally linked to service on a direct basis, to include herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. §§ 1113(b),1116; 38 C.F.R. § 3.303. The February 2018 VA examiner’s medical opinion is inadequate because it does not address whether the Veteran’s peripheral neuropathy is related to presumed herbicide exposure in Thailand during the Vietnam War. Upon remand, VA should obtain a supplemental medical opinion that addresses whether the Veteran’s peripheral neuropathy is related to herbicide exposure. This matter is REMANDED for the following actions: 1. Contact the Veteran and ask him to identify whether there are any outstanding VA or private medical records reflecting treatment for his bilateral lower extremities peripheral neuropathy. If such records are identified, then obtain those records and associate them with the electronic claims file. To expedite this action, the Veteran is encouraged to submit any additional VA or private medical records in his possession. 2. Forward a copy of the Veteran’s electronic claims file, to include a copy of this Remand, to a qualified VA examiner for a supplemental medical opinion. After reviewing the Veteran’s claims file, and with consideration of the Veteran’s lay statements, the VA examiner should opine as to whether it is “at least as likely as not” (a 50 percent probability or greater) that the Veteran’s peripheral neuropathy in the bilateral lower extremities began in service, was caused by service, or is otherwise related to his service, to include presumed exposure to herbicides. The examiner must provide adequate supporting rationale for all medical conclusions reached. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. L. Marcum, Counsel