Citation Nr: 21003327 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-36 129 DATE: January 21, 2021 ORDER Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities, including as due to exposure to herbicide agents, is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his bilateral peripheral neuropathy of the lower extremities, is at least as likely as not related to an in-service injury or disease, to include herbicide agent exposure. CONCLUSION OF LAW The criteria for service connection for bilateral peripheral neuropathy of the lower extremities, including as due to exposure to herbicide agents are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from January 1966 to January 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in January 2020. The matter is now before the Board for appellate review. The Veteran submitted a claim for Total Disability based on Individual Unemployability due to service-connected disabilities (TDIU), which the RO denied in a May 2017 rating decision. The Veteran has not submitted a “notice of disagreement” for his TDIU claim. Therefore, as the Veteran did not appeal the denial of a TDIU, and an increased rating claim is not before the Board, the issue of a TDIU is not before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009) (TDIU must be considered when raised by the record in an initial or increased rating claim). Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities, including as due to exposure to herbicide agents The record establishes the Veteran has peripheral neuropathy affecting his bilateral lower extremities and he served in the Republic of Vietnam. He contends his peripheral neuropathy is the result of exposure to herbicide agents during his service in the Republic of Vietnam. The only issue that remains is whether there is competent evidence of a nexus between the claimed in-service injury and the Veteran's peripheral neuropathy. Service connection will be granted for a disability resulting from disease or injury incurred in or caused by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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). Service connection may also be granted on a presumptive basis for certain diseases, such as early-onset peripheral neuropathy associated with exposure to certain herbicide agents even though there is no record of such disease during service, if they manifest to a compensable degree after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. Early-onset peripheral neuropathy is capable of presumptive service connection but must manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicide agents. 38 C.F.R. §§ 3.307 (a)(6)(ii), 3.309(e). The Veteran’s medical records do not reflect a diagnosis of peripheral neuropathy for many years after service and the Veteran himself testified at his Board hearing that he did not start experiencing symptoms in his lower extremities until at least two years after leaving service. Thus, as there is no competent evidence of peripheral neuropathy until more than one year after service, the Board cannot conclude that the Veteran's bilateral lower extremity peripheral neuropathy manifested to a degree of 10 percent within a year after the date of his last exposure. Therefore, service connection on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309 is not possible. Although service connection is not possible in this case on a presumptive basis, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board finds that the weight of the evidence is at least in equipoise as to whether the Veteran's peripheral neuropathy is related to his active duty service. The Veteran submitted private nexus opinions from Dr. D.C.S., the Veteran’s primary care provider and Dr. D.C.C. Jr., a neurologist. Both doctors opined the Veteran’s peripheral neuropathy is as likely as not related to herbicide agent exposure during his military service in the Republic of Vietnam. Both doctors concluded the Veteran did not have any other risk factors and ruled out all other causes. VA has not obtained an opinion regarding the Veteran's service connection claim for peripheral neuropathy of the bilateral lower extremities. As a result, the evidence is in at least relative equipoise as to whether the Veteran's peripheral neuropathy of the bilateral lower extremities is the result of in-service exposure to herbicide agents. Resolving reasonable doubt in the Veteran's favor, the Board finds service connection for bilateral peripheral neuropathy of the lower extremities is warranted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' the Nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits."). REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends he developed hearing loss as a result of his active duty military service. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). VA provided the Veteran an audiological examination in June 2015. The June 2015 VA examiner found the Veteran had right ear hearing loss, but did not meet the VA criteria for a left ear hearing loss disability. The VA examiner provided a negative etiology opinion regarding the Veteran's hearing loss, noting the veteran did not have hearing loss on separation and “literature” does not support delayed onset hearing loss. This examination is inadequate because the examiner did not identify the literature nor explain how it is applicable to the Veteran. Furthermore, a lack of any noted hearing loss in service is not fatal to a claim of service connection. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Accordingly, a remand is necessary to obtain an adequate opinion that addresses these deficiencies. Moreover, as the 2015 VA examination found the Veteran did not meet the criteria for a hearing loss disability in the left ear but the Veteran has indicated his hearing has worsened since the 2015 VA examination, the Board finds that a new VA examination with audiological testing is warranted to determine if the Veteran meets the criteria for a hearing loss disability in both ears and to afford the Veteran every reasonable opportunity to prevail on his claim. The matter is REMANDED for the following action: 1. Schedule an examination with a qualified clinician regarding the Veteran’s service connection claim for hearing loss. Following review of the claims file and examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has hearing loss in both ears. For any hearing loss found in either ear, the examiner must opine whether it is at least as likely as not that the current hearing loss disability began in or is otherwise caused by the Veteran's active service. The examiner should specifically address the Veteran's lay statements regarding noise exposure and his occupational specialty of jet engine mechanic during service. The examiner should address any other pertinent evidence of record. If the examiner finds that the Veteran's current hearing loss is not related to service because of audiograms showing hearing within normal limits in service, the examiner must explain WHY the normal audiograms during military service would preclude the current hearing loss being related to acoustic trauma in service. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.