Citation Nr: 18151972 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-20 102 DATE: November 20, 2018 ORDER Entitlement to service connection for left hand peripheral neuropathy, due to herbicide agent exposure, is granted. Entitlement to service connection for right hand peripheral neuropathy, due to herbicide agent exposure, is granted. Entitlement to service connection for left foot peripheral neuropathy, due to herbicide agent exposure, is granted. Entitlement to service connection for right foot peripheral neuropathy, due to herbicide agent exposure, is granted. FINDINGS OF FACT 1. The Veteran’s left hand peripheral neuropathy is related to his in-service herbicide agent exposure. 2. The Veteran’s right hand peripheral neuropathy is related to his in-service herbicide agent exposure. 3. The Veteran’s left foot peripheral neuropathy is related to his in-service herbicide agent exposure. 4. The Veteran’s right foot peripheral neuropathy is related to his in-service herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left hand peripheral neuropathy, due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for right hand peripheral neuropathy, due to herbicide agent exposure have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 3. The criteria for entitlement to service connection for left foot peripheral neuropathy, as due to herbicide agent exposure have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 4. The criteria for entitlement to service connection for right foot peripheral neuropathy, due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1968, including service in the Republic of Vietnam. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript has not yet been associated with the file, however, one is not necessary for a decision on the claims. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including an organic disease of the nervous system, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, if a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). The enumerated diseases include early-onset peripheral neuropathy. In order for the presumptive provisions to apply, however, early-onset peripheral neuropathy must manifest to a compensable degree within one year after the last date on which a veteran was exposed to an herbicide agent during active service. See 38 C.F.R. § 3.307(a)(6)(ii). The Board notes that effective September 6, 2013, the provisions of 38 C.F.R. § 3.309 were revised to replace the term “acute and subacute” peripheral neuropathy with “early-onset” peripheral neuropathy and remove a note stating that the term “acute and subacute peripheral neuropathy” meant 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. See 78 Fed. Reg. 173, 54763 (Sept. 6, 2013). The amendment clarifies that VA will not deny presumptive service connection for early-onset peripheral neuropathy solely because the condition persisted for more than two years after the date of the last herbicide agent exposure. However, the revised provisions did not change the requirement that peripheral neuropathy must have become manifest to a compensable degree within one year after a veteran’s last in-service exposure in order to qualify for the presumption of service connection. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 1. Peripheral Neuropathy of the Hands and Feet The Veteran contends that service connection for peripheral neuropathy of the hands and feet is due to his exposure to herbicide agents such as Agent Orange during service. As an initial matter, the Veteran’s service treatment records are negative for complaints, treatment, or diagnosis of bilateral hands and bilateral feet disabilities. The Veteran’s personnel records show that he served on active duty in Vietnam from September 1967 to August 1968. Therefore, he is presumed to have been exposed to Agent Orange. As noted, under applicable legal criteria, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service. The enumerated diseases include early-onset peripheral neuropathy. In order for the presumptive provisions to apply, however, early-onset peripheral neuropathy must manifest to a compensable degree within one year after the last date on which a veteran was exposed to an herbicide agent during active service. See 38 C.F.R. § 3.307(a)(6)(ii). In this case, the record establishes that peripheral neuropathy was not present during the Veteran’s period of active duty or within the first post-service year. He does not contend otherwise. The evidence of record shows multiple diagnoses of peripheral neuropathy as early as 2003 to the present. Although the record establishes that presumptive service connection is not warranted, as set forth above, 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. 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 agent 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); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). See also 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). In a June 2014 private clinical record, the clinician opined that the Veteran’s neuropathy symptoms are most likely a result of Agent Orange exposure. In an October 2014 VA clinical record, the clinician concluded, that as all tests came back negative, Agent Orange will be the most likely explanation of the Veteran’s peripheral neuropathy. Although the clinicians did not provide detailed rationales for their opinions, they nonetheless concluded based upon an examination of the Veteran and medical evidence, the current peripheral neuropathy of the hands and feet is related to Agent Orange exposure. The opinions are thus entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). There is no contrary medical opinion in the evidence of record. Thus, a remand to obtain a new opinion on this question could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). (Continued on the next page)   Accordingly, in light of the competent and credible evidence of peripheral neuropathy of the Veteran’s hands and feet in the years since service, the June 2014 private opinion, the October 2014 VA clinical opinion, and resolving reasonable doubt in the Veteran’s favor, service connection for peripheral neuropathy of the hands and feet is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel