Citation Nr: 19166726 Decision Date: 08/28/19 Archive Date: 08/27/19 DOCKET NO. 10-21 594 DATE: August 28, 2019 ORDER Entitlement to service connection for bilateral foot disorder as a result of in-service exposure to herbicide agents is granted. FINDING OF FACT The competent medical evidence indicates the Veteran’s bilateral foot disorder is related to his in-service exposure to herbicide agents in the Republic of Vietnam. CONCLUSION OF LAW The criteria for service connection for bilateral foot disorder have been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to January 1971. He also served in the U.S. Army Reserves from January 1971 through December 1974. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2009 and March 2011, the Veteran testified at hearings conducted before a Decision Review Officer (DRO) and the undersigned, respectively. Transcripts of both hearings have been associated with the claims file. This matter was most recently remanded by the Board in April 2018 pursuant to a September 2017 Joint Motion for Remand (JMR), which was granted by the United States Court of Appeals for Veterans’ Claims (CAVC). Bilateral Foot Disorder Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam (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. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran contends that service connection is warranted for a bilateral foot disorder, to include broken bones, as a result of in-service exposure to herbicide agents, specifically Agents Orange, White, and Blue, during his service in Vietnam. As a preliminary matter, the Board has previously conceded exposure to herbicide agents in Vietnam and found the Veteran has a current bilateral foot disorder. See July 2016 Board Decision. Although bilateral foot disorder is not a condition presumptively associated with conceded in-service herbicide agent exposure, the Board must consider service connection on a direct basis. The Board notes that the medical opinions from December 2012 and May 2013 did not address the Veteran’s exposure to all herbicide agents, including Agents White and Blue. In addition, a subsequent September 2017 medical opinion did not address any such exposure. Per the April 2018 Board remand, the Veteran underwent a VA examination in May 2019 to determine if his bilateral foot disorder was related to the conceded in-service exposure to Agents Orange, White and Blue. Although the examiner found it is less likely than not that a bilateral foot disorder was incurred in or caused by service, including herbicide agents, the examiner did not explain how a bilateral foot disorder was not related to Agents White and Blue. In fact, the examiner’s rationale only referenced Agent Orange exposure. Thus, the May 2019 VA opinion is inadequate for adjudicative purposes. In April 2018, the Veteran submitted a private opinion from Dr. C.N.B., indicating “to at least the 90% level of probability…that [the Veteran’s bilateral foot disorders) are due to his experiences with [Agent Orange] in Viet Nam (sic).” Dr. C.N.B. indicated he had reviewed the Veteran’s medical reports and personally interviewed the Veteran. He also based his opinion on cited articles and literature indicating a link between Agent Orange and metabolic changes which weakened bone. Thus, when weighing the competent medical evidence before the Board, it supports the conclusion that the Veteran’s bilateral foot disorder is secondary to conceded in-service exposure to Agent Orange. As such, service connection is granted. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Norwood, Associate 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.