Citation Nr: 20002766 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 16-56 755 DATE: January 14, 2020 ORDER Entitlement to service connection for peripheral neuropathy in the right lower extremities, to include as secondary to exposure to herbicide agents, is granted. Entitlement to service connection for peripheral neuropathy in the left lower extremities, to include as secondary to exposure to herbicide agents, is granted. FINDING OF FACT The Veteran’s peripheral neuropathy in his bilateral lower extremities was caused by in-service herbicide agent exposure. CONCLUSIONS OF LAW The criteria for entitlement to service connection for peripheral neuropathy in the right lower extremities, to include as secondary to exposure to herbicide agents, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. The criteria for entitlement to service connection for peripheral neuropathy in the left lower extremities, to include as secondary to exposure to herbicide agents, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran service on active duty in the United States Army from September 1963 to December 1970. The Veteran is a Vietnam Era Veteran. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board in his November 2016 VA Form 9. He was scheduled for a hearing. See July 2019 Correspondence. In a subsequent communication with the Board, the Veteran’s representative withdrew the hearing request. See July 2019 Correspondence. In light of the above, the Veteran’s hearing request is considered withdrawn and the Board will adjudicate the claim on the evidence of record. Service Connection 1. Entitlement to service connection for peripheral neuropathy in the right lower extremities, to include as secondary to exposure to herbicide agents 2. Entitlement to service connection for peripheral neuropathy in the left lower extremities, to include as secondary to exposure to herbicide agents 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The law also establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents and also provides a presumption of exposure for veterans who served in the Republic of Vietnam. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), to include early-onset peripheral neuropathy if manifested to a compensable degree within one year of the last date the veteran was exposed to an herbicide agent during active service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board finds that the evidence of record supports a grant of service connection for peripheral neuropathy of the bilateral lower extremities. First, there is evidence of the current disabilities. In that regard, the Veteran received diagnoses of peripheral neuropathy for the lower left extremity and the right lower extremity. See March 2019 Correspondence; October 2018 CAPRI; January 2018 C&P Exam; December 2017 CAPRI; September 2014 CAPRI; June 2009 Medical Treatment Record-Government Facility; see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (recognizing that the requirement of a “current disability” is fulfilled if a “claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim”). Second, there is evidence of an in-service event, disease, or injury. The Veteran contends that his in-service exposure to an herbicide agent caused the peripheral neuropathy of his bilateral lower extremities. The Board notes that the Veteran’s claims file shows that he had in-country service in Vietnam. See Certificate of Release or Discharge from Active Duty associated with the file on February 1975. Exposure to an herbicide agent will be presumed if a veteran had in-country service in Vietnam or in its inland waterways during the period of January 9, 1962, to May 7, 1975. 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307, 3.313. Thus, exposure to herbicide agents is presumed. Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s peripheral neuropathy of his bilateral lower extremities is related to service. In that regard, the law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107. Although there is evidence against the claims, the March 2019 private examiner opined that the Veteran’s peripheral neuropathy of the left and right lower extremities are more likely than not a result of his service, to include his in-service herbicide agent exposure. In formulating her opinion, she reviewed the Veteran’s medical records, considered the Veteran’s lay statements, and relied on medical literature, and her own expertise, knowledge, and training. In addition, she supported her opinion with a clear and thorough rationale in that she noted the lack of medical records immediately after discharge, the Veteran’s noted symptoms “within a few months of leaving service,” which were confirmed by his wife, and the “consistent [] development of peripheral neuropathy-decreased sensation, pain, [and] tingling.” Thus, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s peripheral neuropathy of his bilateral lower extremities is related to his military service. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran’s favor, a grant of service connection for bilateral lower extremity peripheral neuropathy is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner’.... [I]f... the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jones Council 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.