Citation Nr: 18152826 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 13-27 309 DATE: November 27, 2018 ORDER Entitlement to service connection for peripheral neuropathy (PN) of the bilateral upper and lower extremities is granted. FINDING OF FACT Resolving all doubt in his favor, the Veteran’s bilateral peripheral neuropathy of the upper and lower extremities is the result of his presumed exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for bilateral peripheral neuropathy of the upper and lower extremities have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May 1968 to March 1970. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned at a Board videoconference hearing in May 2016. A transcript of that hearing is of record. This matter was remanded in December 2017 for further development. For clarity, the Board has recharacterized the issue on appeal to specifically include service connection for PN of both the upper and lower extremities. The record makes clear, that shortly before claim submission, and for the entirety of the appeal thereafter, the Veteran has sought service connection for PN of both the upper and lower extremities. See January 2010 VA 21-4142 Authorization for Release of Information, April 2014 VA Form 9 Supporting Correspondence, and September 2018 Supplemental Statement of the Case. Recharacterization to clearly denote the Veteran’s full claim is therefore warranted. 1. Entitlement to service connection for peripheral neuropathy A presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure, including peripheral neuropathy. Effective for claims such as this one pending on September 6, 2013, VA replaced the term “acute and subacute peripheral neuropathy” with the term “early-onset peripheral neuropathy.” See Disease Associated With Exposure to Certain Herbicide Agents: Peripheral Neuropathy, 78 Fed. Reg. 54763 (Sept. 6, 2013)). VA also removed Note 2 to § 3.309(e), which had required, for the presumption to apply, 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. Under the new version of the regulation, early onset peripheral neuropathy will still need to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides to qualify for the presumption of service connection, but it no longer needs to be transient. Id. As an initial matter, the Veteran served in the Republic of Vietnam and exposure to herbicide agents, including AO, is presumed. The Veteran has also been diagnosed with peripheral neuropathy of the upper and lower extremities during the appeal. 38 C.F.R. §§ 3.307, 3.309. However, as discussed above, the presumption of service connection is not met unless it is shown that the Veteran has early-onset peripheral neuropathy and whether it manifested to a compensable degree within a year of the last date on which he was exposed to an herbicide agent. Following careful consideration of the record, the Board finds the evidence to be in equipoise. In December 2017, the Board remanded this matter to obtain a clarifying opinion regarding the etiology of the Veteran’s diagnosed PN. The Board found January 2013 and June 2016 private medical opinions from a Dr. T. R., M.D to be inadequate. In brief, Dr. R. opined that despite testing, etiology of the Veteran’s PN could not be determined. He felt there was no other explanation for the condition could be found, other than toxic exposure, such as the Veteran’s conceded AO exposure history. The Board found these opinions inadequate because they appeared to conflict with Dr. R.’s previous notations in medical records that correlated PN to diagnosed spinal degenerative disc disease (DDD). That said, closer inspection of the record clarifies the basis for Dr. R.’s assertions regarding the etiology of the Veteran’s PN. Inspection of Dr. R.’s treatment medical records from August and December 2009 do indicate an initial impression of “upper extremity symptoms-questionably related to [DDD]….” However, per medical records, this uncertainty led to further testing and referral for neurologic consultation with a neurologist Dr. J. F., M.D. See Dr. R.’s August 2010 Treatment Record, see also Dr. F., M.D.’s July 2010 Consultation Report. Records from Dr. F. to Dr. R. confirm the Veteran’s PN as unique in its’ manifestation, origin, and its’ non-detection on electrodiagnostic examination. See July 2010 Report. These records also discuss why despite reported credible symptomatology indicative of PN, the Veteran’s condition remained undetected on electrodiagnostic testing. Dr. F. explained that in certain instances PN could be present without detection because “some patients have a very restricted small-fiber painful neuropathy that may escape detection of these clinical examinations.” In sum, notwithstanding non-detection, the condition can indeed exist. Importantly, following repeat consultation with Dr. F., Dr. R. revised the initial opinion regarding etiology as due to DDD to the Veteran’s PN as idiopathic in origin. See June 2010 to August 2012 Dr. R. Treatment Medical Records. Idiopathic clinically means due to an unknown cause. The Board finds it significant that this determination was made years in advance of Dr. R.’s initial nexus opinion submitted in January 2013. Further, in combining the clinical evidence, plus Dr. R.’s statement, the Board now finds the opinion to be adequate. The opinion is also considered highly probative as Dr. R. treated the Veteran for decades and worked closely with the Veteran’s neurologist in attempting to ascertain the etiology of his condition. Comparatively, also of record is an August 2018 VA examination opinion, wherein an examiner opined that the Veteran’s PN was due to a protracted history of alcohol abuse. As rationale, the examiner opined that chronic alcohol abuse is a well-established risk factor for the development of PN, and the Veteran’s records establish such heavy use. The examiner also indicated that Dr. R. did not appear to consider this abuse in rendering the opinion as to PN etiology. Although Dr. R. did not address alcohol as a cause of PN, the Board finds this opinion no more persuasive than Dr. R.’s opinion. First, both physicians reviewed the same clinical evidence, interviewed the Veteran, and conducted in-person examination and merely came to divergent conclusions. Second, the examiner emphasized the lack of detection of neurological symptoms on separation, but did not address Dr. F.’s essential finding that even today detection of some forms of PN is extremely difficult. Third, the VA examiner did not truly address Dr. F. and Dr. R.’s determinations that the Veteran’s reported symptomatology of tingling and numbness were credible indications of manifested PN. Such a discussion is necessary as the Veteran, his father, and his brother have credibly reported his symptoms were present immediately post-service and were treated at that time by a now deceased private care provider. See November 2010 Veteran Statement, December 2012 J. R. Statement, and January 2013 J. R., Sr. Statement. Next, clinical records do not document alcohol dependence until decades after service separation which is well after the Veteran’s credible reports of symptomatology. Finally, as stated, Dr. R. was the Veteran’s treating physician for decades so acute awareness as to the specific conditions afflicting the Veteran can be presumed. In sum, the record contains conflicting opinions as to etiology provided by competent medical professionals. Neither opinion is considered more probative than the other. The evidence is at least in equipoise; therefore, the benefit-of-the-doubt will be conferred in the Veteran’s favor and his claim for service connection for upper and lower extremity PN is granted. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel