Citation Nr: 21003936 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 20-28 204 DATE: January 25, 2021 ORDER Service connection for peripheral neuropathy of the lower right extremity, to include as due to herbicide exposure is denied. Service connection for peripheral neuropathy of the lower left extremity, to include as due to herbicide exposure is denied. FINDINGS OF FACT 1. The Veteran’s peripheral neuropathy of the right lower extremity was not caused by exposure to Agent Orange or otherwise related to service. 2. The Veteran's peripheral neuropathy of the left lower extremity was not caused by exposure to Agent Orange or otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the U.S. Air Force from August 1965 to November 1969, including service in Thailand and Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board previously considered this appeal in September 2020 and remanded this issue for further development including obtaining a new VA medical opinion. The case returned to the Board for further appellate review. 1. Entitlement to service connection for peripheral neuropathy of the lower right extremity, to include as due to herbicide exposure 2. Entitlement to service connection for peripheral neuropathy of the lower left extremity, to include as due to herbicide exposure The Veteran contends that he is entitled to service connection for peripheral neuropathy of the bilateral lower extremities due to his conceded herbicide agent exposure while serving in Thailand, to include his reported trips to deliver mail to Vietnam via C-130 aircraft. Service connection will be granted for disability resulting from disease or injury incurred or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first 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). Service connection requires competent evidence establishing three elements: (1) the existence of a present disability; (2) in-service incurrence or aggravation of 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). Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. See 38 C.F.R. § 3.310(a) (2017); Allen v. Brown, 7 Vet. App. 439 (1995). For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, 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 service. 38 U.S.C. § 1116(f). VA laws and regulations state that diseases associated with exposure to certain herbicide agents used in support of military operation in Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption of service connection requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). For purposes of this presumption, early-onset peripheral neuropathy is an enumerated disease. 38 U.S.C. § 1116(a)(2); 38 C.R.F. § 3.309(e). Furthermore, effective September 6, 2013, VA amended its regulations regarding presumptive service connection for peripheral neuropathy associated with herbicide exposure. See 78 Fed. Reg. 54763 54766 (September 6, 2013) (final rule) (replacing the terms "acute and subacute" and "transient" peripheral neuropathy with "early-onset" peripheral neuropathy; removing the requirement under the former §§ 3.307(a)(6)(ii) and 3.309(e) that "acute and subacute" peripheral neuropathy appear within weeks or months after exposure; and removing the requirement that the condition resolve within two years of the date of onset in order for the herbicide presumption to apply). To warrant service connection, "early-onset" peripheral neuropathy must have become manifest to a degree of 10 percent or more within a year after 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). Preliminarily, the Board notes that in the September 2020 Board decision, the Board conceded herbicide exposure, therefore he is presumed to have been exposed to an herbicide agent. In August 2018, the Veteran was afforded a VA examination which indicate the Veteran was diagnosed with peripheral neuropathy of the left and right lower extremities with onset of symptoms in 2010 which began spontaneously and have stayed the same. This evidence suggests that the Veteran's peripheral neuropathy is neither acute, subacute, transient, nor early-onset, and his current symptoms of lower extremity intermittent pain, numbness and tingling of the lower extremities began several years after his active duty service in Vietnam. Therefore, presumptive service connection for peripheral neuropathy is not warranted. However, if these statutory presumptions are not met, a veteran is not precluded from establishing service connection with proof of actual direct causation. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Since there is an established medical diagnosis of peripheral neuropathy of the right and left lower extremities and the Veteran exposure to herbicide agents has been conceded, the first and second elements of service connection has been met. See August 2018 VA examination. The remaining question is whether there is competent evidence of a nexus between the current disability and the in-service disease or injury. As mentioned, the Veteran underwent a VA examination in August 2018. The VA examiner opined that it is less likely than not that the Veteran’s bilateral lower extremity disabilities, to include peripheral neuropathy, are causally related to his in-service exposure to herbicide agents, as “there are no medical records showing diagnosis, treatment for the peripheral neuropathy, lower extremities condition or any related neuropathy condition while Veteran was still in service.” However, the August 2018 VA examination examiner failed to address whether, despite its delayed onset, the Veteran’s current bilateral lower neuropathy may be causally related to his in-service exposure to herbicide agents. See 38C.F.R. §3.303(d). Pursuant to the September 2020 Board remand, a VA medical addendum was obtained in November 2020. The November 2020 VA medical examiner concluded that the Veteran’s peripheral neuropathy of the right and left lower extremities is less likely than not (less than 50% probability) related to his military service, to include his presumed herbicide exposure. The VA examiner’s reasoned that there is no objective evidence of an early onset of peripheral neuropathy (within one year of separation from service) as the medical record shows the Veteran was first diagnosed in 2018 and his symptoms began in 2010. The November 2020 VA examiner found that “[t]he National Academy of Sciences has concluded that there is inadequate or insufficient evidence of an association between exposure to the herbicides and delayed or persistent peripheral neuropathy. A review of the current evidence based research also fails to provide any support for an etiology of the Veteran's bilateral lower extremity peripheral neuropathy due to service.” The VA examiner added that “the Veteran has multiple co-morbid conditions which can contribute to his lower extremity peripheral neuropathy symptoms: Hypertension and Hyperlipidemia which can cause Peripheral Vascular Disease; a possible old CVA with a left foot drag and low Vitamin B levels, for which the Veteran was recommended to take a Vitamin B-12 supplement.” While the Board understands and sympathizes with the Veteran's condition, and the Veteran is competent to report the symptoms the Veteran experiences, the Veteran is not competent to provide a medical nexus to his condition or determine that this condition is due to Agent Orange exposure. Furthermore, the medical evidence reflects that the Veteran's symptoms of tingling and numbness in the lower extremities began in 2010. The issue is medically complex, as it requires knowledge of symptoms during service and a diagnosis provided many years after separation. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The VA examination report documents that the examiner reviewed the claims file, and all relevant evidence was associated with the claims file at that time. The examiner was fully informed of the evidence of record at the time of the examination. Consequently, the Board gives more probative weight to the competent medical evidence, including the VA examiner's medical opinion. Because the Veteran's record fails to show a medical nexus connecting the current peripheral neuropathy to service, the Veteran's claim does not meet the requirements for service connection. Therefore, service connection for peripheral neuropathy of the right and left lower extremities as due to Agent Orange exposure is denied. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.