Citation Nr: 20047489 Decision Date: 07/15/20 Archive Date: 07/15/20 DOCKET NO. 17-12 769 DATE: July 15, 2020 ORDER Entitlement to service connection for bilateral lower extremity peripheral neuropathy is granted. REMANDED Entitlement to service connection for atrial fibrillation is remanded. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran’s bilateral lower extremity peripheral neuropathy is at least as likely as not related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Navy from July 1959 to April 1963 and again from July 1963 to June 1970. He testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in December 2018. A transcript of the hearing is of record. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). To establish service connection, a Veteran must show: (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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a veteran was exposed to an herbicide agent during service, certain listed diseases 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. Private treatment records document a diagnosis of bilateral lower extremity peripheral neuropathy. In addition, the RO has conceded that the Veteran was exposed to herbicides during service. See March 2020 Supplemental Statement of the Case. Therefore, the first and second elements of service connection have been met. The Veteran’s service treatment records are silent for any complaints, findings, or diagnoses related to peripheral neuropathy. In addition, the Veteran has not alleged, nor has he submitted competent evidence to show, that his peripheral neuropathy disabilities had their onset in service or that he has suffered from symptoms related to those disabilities continuously since service. Instead, it is his contention that his bilateral lower extremity peripheral neuropathy is due to his conceded herbicide agent exposure. Only early-onset peripheral neuropathy is subject to the herbicide agent presumption. 38 C.F.R. § 3.309(e). To qualify for the herbicide presumption, early-onset peripheral neuropathy must manifest within one year of the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Again, the evidence does not show that the Veteran’s peripheral neuropathy manifested within one year of service. However, in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). Thus, the question before the Board is whether the Veteran’s bilateral lower extremity peripheral neuropathy is directly related to his conceded in-service herbicide exposure. There are two medical opinions of record. In June 2015, a private foot and ankle specialist opined that the Veteran’s peripheral neuropathy was secondary to his Agent Orange exposure. In support of the opinion, the examiner noted that he sent the Veteran for lab work to rule out other possible etiologies and ultimately determined that the Veteran did not have any other reason to have developed peripheral neuropathy. A VA medical opinion was obtained in February 2020. The examiner opined that the Veteran’s bilateral lower extremity peripheral neuropathy was less likely than not related to service. As rationale, the examiner noted that the Veteran’s peripheral neuropathy did not have its onset until many years after service and “despite extensive studies there is neither a consensus of evidence in medical literature or in the medical community that supports a causal relationship between [the Veteran’s peripheral neuropathy] and presumed Agent Orange exposure during Vietnam service.” The Board finds no reason to weigh one medical opinion over the other. The private examiner supported their opinion based on lack of alternative causes while the VA examiner stated that there is no medical literature to support a relationship between late-onset peripheral neuropathy and herbicide exposure. Thus, the Board resolves all reasonable doubt in favor of the Veteran in finding that service connection for bilateral lower extremity peripheral neuropathy is warranted. This represents a full grant of the benefit sought on appeal as to this issue. REASONS FOR REMAND Entitlement to service connection for atrial fibrillation is remanded. The Board remanded the Veteran’s claim in May 2019 to confirm whether he was exposed to herbicide agents during service and also to obtain a VA medical opinion discussing the etiology of his atrial fibrillation. The previous VA examiner did not have the opportunity to consider the Veteran’s lay reports regarding experiencing continuous heart symptoms since service. As noted above, the RO has now conceded that the Veteran was exposed to herbicide agents during service. An additional VA medical opinion was also obtained in February 2020. The examiner opined that the Veteran’s heart disability was less likely than not related to service as “both conditions occurred many years after separation. Despite extensive studies there is neither a consensus of evidence in medical literature or in the medical community that supports a causal relationship between these conditions and presumed Agent Orange exposure during Vietnam service.” This medical opinion continues to be incomplete. The examiner did not consider the Veteran’s lay reports of being diagnosed with atrial fibrillation during service and continuity of heart symptoms since service. As such, remand is required to obtain additional VA medical opinion. The matters are REMANDED for the following action: 1. Obtain a VA addendum medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s heart disability. The need for an in-person examination is left to the discretion of the examiner. However, the examiner is free to contact the Veteran via telephone to elicit additional information regarding the heart symptoms he has experienced since service. After reviewing the entire claims file, the examiner is asked to opine: Whether it is at least as likely as not that the Veteran’s heart disability is related to any in-service injury, event, or disease, to include his conceded herbicide agent exposure. The examiner is specifically asked to consider the Veteran’s lay reports made during his Board hearing. The Veteran has asserted that during service in 1961, he was diagnosed with atrial fibrillation. He contends that since then, he experienced heart-related symptoms including shortness of breath and essentially becoming dazed.   A complete rationale for any medical opinion rendered must be provided. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.