Citation Nr: 20032976 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 16-18 311 DATE: May 12, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD), is dismissed. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, also claimed as residual muscle damage, residuals of blood poisoning, and residuals of cellulitis, is granted. FINDINGS OF FACT 1. On March 13, 2020, the Veteran indicated that he wished to withdraw his claim for service connection for an acquired psychiatric disorder. 2. The probative evidence of record demonstrates that the Veteran’s peripheral neuropathy of the bilateral lower extremities is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a claim for service connection for an acquired psychiatric disorder by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for service connection for peripheral neuropathy of the bilateral lower extremities are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Navy from March 1971 to February 1973. In March 2020, the Veteran testified before the undersigned Veteran’s Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. In March 2020, the Veteran submitted additional medical evidence for the Board of Veterans’ Appeals (Board) to consider and waived agency of original jurisdiction (AOJ) review of the evidence. In this new evidence, there is a medical opinion that links the Veteran’s the Veteran’s left foot to peripheral neuropathy. However, that claim is not on appeal. Should he wish to file a claim for service connection, he should do so. Dismissal 1. Service connection for an acquired psychiatric disorder is dismissed. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (d)(5); 38 C.F.R. § 20.202. A substantive appeal may be withdrawn in writing and is effective when received by the RO prior to the appeal being transferred to the Board, or when received by the Board before it issues a final decision. 38 C.F.R. § 20.204 (b). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (a). On March 13, 2020, the Veteran submitted a statement indicating that he wished to withdraw his claim for service connection for an acquired psychiatric disorder. At the Veteran’s hearing, he confirmed that he wished to withdraw the claim. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this specific matter. Accordingly, the Board does not have jurisdiction to review the appeal of that issue and it is therefore dismissed. Service Connection 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities The Veteran contends that he developed blood poisoning or cellulitis during service and that this exposure lead to his current peripheral neuropathy disability. In the alternative, he contends that he was exposed to herbicide agents (agent orange) during service and this is the cause of his peripheral neuropathy. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition to the criteria for service connection explained above, the governing law provides that 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.” The Veteran’s personnel records confirm service in Vietnam; therefore, he is presumed to have been exposed to herbicides. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including early onset peripheral neuropathy, shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309 (e). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has a current diagnosis of peripheral neuropathy of the bilateral lower extremities. Further, he served in the Republic of Vietnam, was exposed to herbicide agents, and was treated for cellulitis/sepsis during service. Thus, the first two elements of service connection are met. Shedden, supra. Turning to the evidence of record, the Board does not find that the Veteran had early onset peripheral neuropathy such that a presumptive grant of service connection under 38 C.F.R. § 3.309 (e) is warranted. There is no documentation of this the Veteran’s service treatment records (STRs) and no medical evidence that specifically diagnosed the Veteran with early-onset peripheral neuropathy. Nevertheless, the Board finds that the evidence links the Veteran’s peripheral neuropathy to chemical exposure. See document labeled Medical Treatment Record-Non-Government Facility, received June 29, 2016 (noting that Veteran has significant underlying peripheral neuropathy most probably due to chemical exposure, with no history of diabetes); and document labeled Medical Treatment Record-Non-Government Facility, received March 17, 2020 (containing positive nexus opinions dated in January 2015, February 2019, and March 2019). (CONTINUED ON NEXT PAGE) In particular, the Board finds the 2019 opinions to be very well-reasoned, and based on a review of the pertinent records in this Veteran’s case, including his relevant medical history; thus, they deserve great probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). No VA medical opinion was obtained that might provide a contrary finding. Therefore, entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is granted. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.