Citation Nr: A20017455 Decision Date: 11/24/20 Archive Date: 11/24/20 DOCKET NO. 190611-21018 DATE: November 24, 2020 ORDER Entitlement to service connection for right upper extremity peripheral neuropathy (including hand), as due to herbicide exposure, is granted. Entitlement to service connection for left upper extremity peripheral neuropathy (including hand), as due to herbicide exposure, is granted. Entitlement to service connection for right lower extremity peripheral neuropathy (including foot), as due to herbicide exposure, is granted. Entitlement to service connection for left lower extremity peripheral neuropathy (including foot), as due to herbicide exposure, is granted. FINDING OF FACT The Veteran’s diagnosed peripheral neuropathy of the bilateral upper and lower extremities is presumed to have been caused by his herbicide exposure in service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for establishing entitlement to service connection for right upper extremity peripheral neuropathy (including hand), as due to herbicide exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for establishing entitlement to service connection for left upper extremity peripheral neuropathy (including hand), as due to herbicide exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. Resolving all reasonable doubt in favor of the Veteran, the criteria for establishing entitlement to service connection for right lower extremity peripheral neuropathy (including foot), as due to herbicide exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. Resolving all reasonable doubt in favor of the Veteran, the criteria for establishing entitlement to service connection for left lower extremity peripheral neuropathy (including foot), as due to herbicide exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDING AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Marine Corps from July 1968 to July 1972, to include service in Vietnam. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. VA had implemented a temporary program titled RAMP, the Rapid Appeals Modernization Program, that allowed Veterans to “opt-in” to the new claims and appeals process before AMA went into full effect. The Veteran was notified of his opportunity to participate in the RAMP program, and he chose to participate in that program in July 2018. He was notified in January 2019 that his appeals for peripheral neuropathy of the bilateral upper and lower extremities were withdrawn from the legacy appeal process. As this case is based on a rating decision from the Veteran’s RAMP opt-in, this appeal has been considered consistent with the new AMA framework. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 RAMP rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the RO received the Veteran’s Decision Review Request Board Appeal VA Form 10182 (Notice of Disagreement (NOD)). 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). In the NOD, the Veteran requested the Hearing lane, indicating that he wanted a Board hearing and the opportunity to submit any additional evidence in support of the appeal within 90 days after the hearing. In an August 2019 notice, the Board acknowledged the Veteran’s appeal request and informed him that the appeal had been placed on the Hearing docket. In August 2020, the Veteran testified at a Board hearing conducted via videoconference before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s electronic claims file. The Board notes that the 90-day window to add evidence after the hearing has not lapsed; however, as the claims on appeal are granted herein, there is no prejudice to the Veteran in adjudicating the claims. The Board notes that, in the January 2019 RAMP rating decision on appeal, the RO reopened the Veteran’s claims of entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities; however, it confirmed and continued the previous denial of service connection for each claim, as it determined that there was no nexus to service. The Board notes that, as the Agency of Original Jurisdiction (AOJ) determined in the January 2019 RAMP rating decision that new and relevant evidence was submitted to warrant readjudicating the claims, the Board is bound by this favorable finding. AMA, Pub. L. No. 115-55 § 5104A, 131 Stat. 1105, 1106-07. 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 preexisting, such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to show a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). A decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may be presumed for certain diseases if a veteran was exposed to an herbicide agent, including Agent Orange, during service, and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The list of diseases that are deemed associated with herbicide exposure includes early-onset peripheral neuropathy. However, for the presumptive service connection provisions to apply, early-onset peripheral neuropathy must manifest to a compensable degree within one year after the last date on which a veteran was exposed to an herbicide agent during active service. See 38 C.F.R. § 3.307(a)(6)(ii). Effective September 6, 2013, the provisions of 38 C.F.R. § 3.309 were revised to replace the term “acute and subacute” peripheral neuropathy with “early-onset” peripheral neuropathy and removing the note stating that the term “acute and subacute peripheral neuropathy” meant transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. See 78 Fed. Reg. 173, 54763 (September 6, 2013). The amendment clarifies that VA will not deny presumptive service connection for early-onset peripheral neuropathy solely because the condition persisted for more than two years after the date of the last herbicide exposure. However, the revised provisions did not change the requirement that peripheral neuropathy must have become manifest to a compensable degree within one year after a veteran’s last in-service exposure in order to qualify for the presumption of service connection. Regardless of whether a claimed disability is recognized under 38 U.S.C. § 1116, pertaining to herbicide agent exposure presumptive diseases, a veteran is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure. See Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). Under 38 U.S.C. § 1116(b)(3), an association between the occurrence of a disease in humans and exposure to an herbicide agent shall be considered positive if the credible evidence for the association is equal to or outweighs the credible evidence against such an association. VA regulations provide that a veteran who 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 to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). 1. Entitlement to service connection for right upper extremity peripheral neuropathy (including hand), as due to herbicide exposure, is granted. See Argument Below 2. Entitlement to service connection for left upper extremity peripheral neuropathy (including hand), as due to herbicide exposure, is granted. See Argument Below 3. Entitlement to service connection for right lower extremity peripheral neuropathy (including foot), as due to herbicide exposure, is granted. See Argument Below 4. Entitlement to service connection for left lower extremity peripheral neuropathy (including foot), as due to herbicide exposure, is granted. The Veteran seeks entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities. He contends that these disabilities are a result of herbicide exposure during his service in Vietnam. Service personnel records reflect that the Veteran served in the Republic of Vietnam between January 1969 to May 1969. He was awarded the Vietnam Service Medal. The Veteran is, therefore, presumed to have been exposed to herbicides. The Veteran has a current diagnosis of peripheral neuropathy of the bilateral upper and lower extremities. See September 2016 VA examination report. The Veteran reported numbness, tingling, and burning in the hands and feet, as well as decreased sensation in the hands and feet. See id. After a review of all the lay and medical evidence, the evidence supports a finding that the Veteran’s peripheral neuropathy of all four extremities is etiologically related to his service. A January 2017 VA treatment record shows that the Veteran reported that over the past two to three years, he experienced painful paresthesia of the hands and feet. The examiner noted that the Veteran had direct and ongoing contact with Agent Orange during his military service in Vietnam. The examiner opined that, because of the Veteran’s Vietnam military service and direct exposure to Agent Orange for an extended length of time, it is likely greater than a 50 percent probability that the Veteran’s peripheral neuropathy is related to his exposure to Agent Orange and toxicity herbicides. In a January 2019 letter, the Chief of Neurology of the Buffalo VA Medical Center (VAMC) states that, in January 2017, the Veteran underwent tests to rule out other etiologies of peripheral neuropathy. All of the tests were returned as negative, and based on this, it was concluded that there was a greater than 51 percent probability that the Veteran’s exposure to Agent Orange and other poisonous dioxins while serving in Vietnam was the cause of his neuropathy. Based on a review of the Veteran’s medical history, the Chief of Neurology opined that, based on the elimination of other etiologies for neuropathy and the Veteran’s history of exposure to Agent Orange and other poisonous dioxins, there is a greater than 51 percent probability that his symptoms are caused by his herbicide exposure during his service in Vietnam. During the August 2020 Board hearing, the Veteran testified that he has had some symptoms of his neuropathy since when he first left Vietnam, though not to the level of severity that he currently experiences. The Veteran served in the Republic of Vietnam, and is therefore, presumed to have been exposed to herbicides, including Agent Orange. Regardless of whether the Veteran’s peripheral neuropathy manifested to a compensable degree within one year of service separation, the previously discussed medical evidence shows that both the January 2017 VA examiner and the Chief of Neurology of the Buffalo VAMC provided a favorable nexus opinion that directly links the Veteran’s exposure to herbicides to his current disabilities. The weight of the evidence is at least in relative equipoise as to whether the Veteran has peripheral neuropathy in all four extremities as due to his presumed exposure to herbicides. The medical opinions of record attribute the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities to exposure to herbicides during service. While there is no objective evidence that establishes the Veteran experienced a compensable manifestation of his peripheral neuropathy within one year of service separation, the Veteran testified that, while not to the level of severity he currently experiences, he had symptoms of his neuropathy when he first left Vietnam. Based on the above, the favorable medical opinions demonstrate that the Veteran’s bilateral upper and lower extremity peripheral neuropathies are directly related to his exposure to herbicides during service. Accordingly, after resolving all reasonable doubt in favor of the Veteran, the Board finds that the weight of the evidence supports the Veteran’s claims of service connection. For these reasons, the Board finds that service connection for neuropathy of the bilateral upper and lower extremities is warranted. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.