Citation Nr: 19139727 Decision Date: 05/23/19 Archive Date: 05/21/19 DOCKET NO. 18-22 921A DATE: May 23, 2019 ORDER Entitlement to service connection for peripheral neuropathy in the left lower extremity is granted. Entitlement to service connection for peripheral neuropathy in the right lower extremity is granted. REMANDED The claim of entitlement to an initial rating higher than 60 percent for coronary artery disease (CAD) is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. FINDINGS OF FACT 1. The evidence indicates that peripheral neuropathy in the left lower extremity is due to presumed herbicide exposure during service. 2. The evidence indicates that peripheral neuropathy in the right lower extremity is due to presumed herbicide exposure during service. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy in the left lower extremity are met. 38 U.S.C. §§ 1110, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for peripheral neuropathy in the right lower extremity are met. 38 U.S.C. §§ 1110, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to July 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). Service Connection The Veteran claims that he incurred bilateral peripheral neuropathy in the lower extremities as the result of herbicide exposure in the Republic of Vietnam. The record documents that he served there between March 1968 and October 1969. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, several diseases listed under 38 C.F.R. § 3.309(e) 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, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113, 38 C.F.R. § 3.307(d) are also satisfied. Peripheral neuropathy is not listed under § 3.309(e) so this disorder may not be presumed service connected for veterans who served in Vietnam during the applicable time period. 38 C.F.R. § 3.309(e). Nevertheless, based on his service in Vietnam, the Veteran is presumed to have been exposed to herbicides there. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A service connection finding for bilateral lower extremity peripheral neuropathy is warranted for the following reasons. First, the record establishes that the Veteran has bilateral lower extremity peripheral neuropathy. A diagnosis of idiopathic peripheral neuropathy in the lower extremities is noted in VA treatment records dated until 2018. Second, service personnel records document that the Veteran was presumably exposed to herbicides during service in Vietnam between March 1968 and October 1969. Third, the only medical opinion of record commenting on the Veteran’s assertion supports his claim. In a September 2015 VA treatment record, the Veteran’s treating neurologist stated, with regard to lower extremity peripheral neuropathy, “[p]resumed current cause in the absence of an identified cause would be likely due to AO exposure in Vietnam.” The physician prefaced this statement noting that “[t]here is no cause identified thus far.” These statements support the claim because the Veteran’s peripheral neuropathy is repeatedly described as “idiopathic” in the treatment records. Peripheral neuropathy may not be presumed service connected based on herbicide exposure in the way, for example, diabetes mellitus may be presumed service connected. See 38 C.F.R. § 3.309(e). Nevertheless, based on the treating neurologist’s comments, the evidence is at least in a state of relative equipoise on whether a direct service connection finding is warranted. See 38 C.F.R. § 3.303. This is particularly so given the absence of medical evidence finding peripheral neuropathy unrelated to herbicides exposure during service. As such, this is an appropriate case in which to invoke VA’s doctrine of reasonable doubt and to grant the claims. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND A remand is warranted for the claim of entitlement to a higher initial rating for heart disability. The Veteran has been rated 60 percent disabled for heart disability since filing an original service connection claim in March 2015. The next-highest disability rating for service-connected CAD is the maximum 100 percent rating authorized under Diagnostic Code 7005 of 38 C.F.R. § 4.104 (2018). The Veteran underwent VA compensation examination into his claim in October 2015 and August 2017. The results of each examination are mixed with regard to whether the evidence would support the assignment of a 100 percent rating here. Further, the Veteran has submitted into evidence treatment records pertaining to treatment of heart disability at the Mayo Clinic. A remand is warranted for another examination addressing whether any of the criteria for a 100 percent rating under DC 7005 have been met. Inasmuch as the Veteran asserts that service-connected heart disability renders him unemployable, a claim to a TDIU is on appeal as well. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). This claim must be remanded because it is intertwined with the higher initial rating claim. See Smith v. Gober, 236 F.3d. 1370 (Fed. Cir. 2001). The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the claims. Include in the claims file any outstanding VA treatment records, the most recent of which are dated in July 2018. All records/responses received must be associated with the claims file. See 38 C.F.R. § 3.159 (2018). 2. After the foregoing development has been completed, schedule an examination to determine the nature and severity of heart disease. After reviewing the claims folder, interviewing the Veteran, and examining him, the examiner should address the following questions. (a). Has the Veteran experienced chronic congestive heart failure? (b). Has he experienced a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness or syncope? (c). Has he experienced left ventricular dysfunction with an ejection fraction of less than 30 percent? See 38 C.F.R. § 4.104, Diagnostic Code 7005. (Continued on the next page)   3. Readjudicate the claims on appeal to include the claim for a TDIU. All evidence received since the April 2018 Statement of the Case (SOC) should be considered. If any benefit sought remains denied, the Veteran should be provided a Supplemental SOC. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher McEntee, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.