Citation Nr: 18100433 Decision Date: 04/13/18 Archive Date: 04/13/18 DOCKET NO. 14-10 685A DATE: April 13, 2018 ISSUES DECIDED: 0 ISSUES REMANDED: 2 REMANDED ISSUES Entitlement to service connection for peripheral neuropathy and entitlement to a total disability rating based on individual unemployability (TDIU) are remanded for additional development. The Veteran served on active duty from June 1966 to June 1968, to include service in the Republic of Vietnam. He also served in the Army National Guard. The Veteran was awarded a Combat Action Ribbon among other decorations. In January 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the electronic claims file. The Veteran contends that he has experienced pain and numbness in his feet since serving in Vietnam and these symptoms have continued to the present day. He believes that the symptoms in service were peripheral neuropathy caused by exposure to herbicide agents, such as Agent Orange, while in Vietnam. While certain diseases will be considered to have been incurred in service for veterans serving in Vietnam as a result of exposure to herbicide agents, peripheral neuropathy is not one of these diseases. 38 U.S.C. § 1116(a)(1) (2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2017). It is noted that early-onset peripheral neuropathy is on the presumptive list but must manifest to a compensable degree within one year after last exposure to herbicide agents. See 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). However, in addition to the presumptive regulations, a Veteran may establish service connection based on exposure to herbicide agents with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Evidence suggests the Veteran has had skin issues affecting his feet since service in Vietnam and he is service-connected for dermatitis effective October 1969. At a VA examination in 1973, the Veteran reported experiencing pain and swelling in his feet. More recent treatment records indicate a diagnosis of peripheral neuropathy and suggest it may be a toxic neuropathy, as other causes were not immediately obvious. The Veteran submitted buddy statements from his brothers and wife indicating his feet hurt upon return from Vietnam and now the symptoms had spread up his legs to the knees. At his January 2018 Board hearing, the Veteran indicated he was physically sprayed with Agent Orange in Vietnam and, at times, was covered in it from head to toe. He indicated he would sometimes take his boots off when not on patrol because of discomfort in his feet, which was corroborated in a buddy statement from a fellow Marine in his squad. The Veteran has not been afforded a VA examination in this case and the Board finds remand is necessary to satisfy the duty to assist. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is lay evidence of continuing symptomatology since service and exposure to herbicide agents in Vietnam is conceded. An examination and opinion should be obtained to determine whether peripheral neuropathy at least as likely as not had onset in service or was caused by in-service exposure to herbicide agents. The decision regarding whether the Veteran is entitled to service connection for peripheral neuropathy could impact the analysis of whether a TDIU is appropriate. On remand, following development of the service connection claim, the Agency of Original Jurisdiction (AOJ) should reconsider entitlement to a TDIU. The matters are REMANDED for the following action: 1. Associate all outstanding VA treatment records with the electronic claims file. 2. Schedule the Veteran for a VA examination to determine whether he has peripheral neuropathy, or another neurological disability affecting his extremities, that at least as likely as not (50 percent or greater probability) had onset in service, within one year of the Veteran’s return from Vietnam, or is otherwise related to the Veteran’s period of active duty service, to include conceded exposure to herbicide agents in Vietnam. The electronic claims folder must be made available to the examiner for review. This opinion should focus on whether, in this Veteran’s particular case, there was a relationship between conceded exposure to herbicide agents and this Veteran’s development of peripheral neuropathy or another neurologic disorder affecting the extremities. It is understood that peripheral neuropathy is not on the list of diseases considered presumptively caused by exposure to herbicides. This opinion seeks a discussion as to direct causation. The examiner is asked to consider the lay statements of record regarding symptomatology during service and thereafter. A rationale must accompany all opinions expressed as the Board is precluded from making any medical findings. 3. When the development requested has been completed, readjudicate the Veteran’s claims, to include entitlement to a TDIU. If the benefits sought are not granted, furnish the Veteran and his attorney with a supplemental statement of the case and provide an opportunity to respond in accordance with applicable statutes and regulations. The case should then be returned to the Board for further appellate review, if otherwise in order. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Boyd Iwanowski