Citation Nr: 1808422	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  16-09 499	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for bilateral lower extremity peripheral neuropathy. 


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Showalter, Associate Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from April 1964 to April 1966.  This matter is before the Board of Veterans' Appeals (Board) on appeal from September 2013 and May 2014 rating decisions of the Des Moines, Iowa and Phoenix, Arizona Department of Veterans Affairs (VA) Regional Offices (RO). 

In December 2017, a videoconference hearing was held with the Veteran as a witness.  A transcript of the hearing has been associated with the claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

1. The Veteran has peripheral neuropathy, was exposed to Agent Orange during his three month deployment to Vietnam, and his peripheral neuropathy is causally related to his Agent Orange exposure. 


CONCLUSION OF LAW

The criteria for service connection for bilateral lower extremity peripheral neuropathy have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).

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REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, the Board is granting in full the benefit sought on appeal.  Assuming that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and does not need to be addressed.  

Service Connection

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. § § 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017).  Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service.  For purposes of the presumption, "herbicide agents" are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § 3.307(a)(6)(i).  Veterans who during active military, naval, or air service, served in the Republic of Vietnam are presumed to have been exposed to herbicide agents.  See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6).  

Even if a Veteran does not qualify for the presumption of herbicide agent exposure, the Veteran may establish in-service exposure to an herbicide agent if the evidence indicates that it is at least as likely as not that such exposure occurred.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (holding that the availability of a presumption does not preclude establishing the same facts by evidence); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In the present case, the Board finds that the Veteran has a bilateral lower extremity peripheral neuropathy.  Treatment records show that the Veteran has been diagnosed with the disability and treated for his symptoms for several years.  

The Board also finds that the Veteran is presumed to have been exposed to Agent Orange.  The Veteran served for three months in the Republic of Vietnam during his tour of active duty and therefore is presumed to have been exposed to Agent Orange.  38 C.F.R. § 3.307(a)(6).  

Turning to the question of whether there is a nexus, or causal link, between the current shown disability and service, the Board finds that the evidence shows the Veteran's peripheral neuropathy is related to his Agent Orange exposure.  See Stefl, 21 Vet. App. at 124.  In June 2010 private treatment notes, a physician stated that the Veteran's lower extremity peripheral neuropathy was "possibly secondary to agent orange" and further that "it has been well known and documented that extended exposure to Agent Orange has caused peripheral neuropathic syndromes."  

In a May 2013 opinion, a VA neurologist who had been treating the Veteran's peripheral neuropathy stated that, given the lack of a diabetes diagnosis and the Veteran's minimal alcohol consumption over the years, "consideration must be given to exposure to Agent Orange as the inciting cause of the Veteran's peripheral neuropathy."  Treatment notes show that the Veteran has never had a diagnosis of diabetes.  In September 2014, the same neurologist opined that "it is more likely than not that [Agent Orange exposure] has led to this Veteran's disability related to his peripheral neuropathy."  

In a February 2016 opinion, a physician stated that "there is a presumptive link between past Agent Orange exposure and development of neuropathy either acute or chronic."  

Finally, in a May 2016 opinion, a neurologist stated that the Veteran's peripheral neuropathy had a "50% or greater" probability that "his history of exposure to Agent Orange" caused his peripheral neuropathy because "all other obvious causes have been ruled out." 

Overall, three separate physicians have opined that the Veteran's Agent Orange exposure at least as likely as not caused the Veteran's peripheral neuropathy.  They have come to this conclusion after becoming familiar with the Veteran's medical history from treating him for a number of years and concluding that there is no other obvious cause for his neuropathy.  While the RO denied the claim, previous consideration was only provided under 38 C.F.R. § 3.307, which requires a disability to become manifest within a specified time frame.  Despite evidence suggesting that the Veteran's neuropathy began in 1970, the claim was denied and consideration not provided for direct service connection.  

Similarly, the RO cited to a National Academy of Sciences' (NAS) finding that showed "evidence does not support an association between herbicide exposure and delayed-onset peripheral neuropathy."  However, as the record shows, there is evidence to suggest that the Veteran's peripheral neuropathy began within a few years after separation from service, specifically that he reported foot numbness in 1970.  Additionally, the Board must weigh medical opinions based on their factual predicate and their rationale to determine which is more persuasive in their findings.  See Evans v. West, 12 Vet. App. 22, 30 (1998).  

In this case, the Board finds the three medical opinions more persuasive in the Veteran's particular case.  Not only do these medical opinions address the Veteran's specific medical history (which the NAS finding does not), but they also rule out other potential causes for his neuropathy, providing a rationale for their opinion.  For these reasons, the Board finds that it is at least as likely as not that Agent Orange exposure caused his peripheral neuropathy.  Accordingly, service connection is warranted.    



ORDER

Service connection for bilateral lower extremity peripheral neuropathy is granted.




____________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs