Citation Nr: 21068030 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 13-34 152A DATE: November 8, 2021 ORDER Entitlement to service connection for peripheral neuropathy, lower right extremity is granted. Entitlement to service connection for peripheral neuropathy, lower left extremity is granted. FINDING OF FACT The evidence of record is at least in equipoise that the Veteran's left and right lower extremity peripheral neuropathy was caused by the Veteran's exposure to herbicide agents during his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral neuropathy, lower right extremity have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for peripheral neuropathy, lower left extremity have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from February 1967 to January 1969. In November 2019, the Board issued a decision denying entitlement to service connection for peripheral neuropathy, lower right extremity and entitlement to service connection for peripheral neuropathy, lower left extremity. The Veteran appealed the Board's decision to the United States Court of Appeals for Veteran's Claims (Court). In December 2020, the Court granted a Joint Motion for Remand (JMR) that vacated the November 2019 Board decision and remanded the claim for development consistent with the JMR. The Veteran had previously testified before a Veterans Law Judge who is no longer employed at the Board regarding the issues on appeal in August 2017. He was afforded a new hearing before the undersigned Veterans Law Judge in August 2021. Transcripts of both hearings are of record. Service Connection 1. Entitlement to service connection for peripheral neuropathy, lower right extremity 2. Entitlement to service connection for peripheral neuropathy, lower left extremity Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entire record. A layperson is competent to report on the onset and continuity of current symptomatology based on personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007). 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 v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded. The Veteran contends that he suffers from left and right lower extremity peripheral neuropathy due to exposure to herbicide agents during his period of active service. The Veteran's service treatment records (STRs) do not report symptoms of peripheral neuropathy. During the Veteran's examination prior to separation in January 1969, the Veteran's lower extremities and neurological examinations were normal. The Veteran's Report of Medical History prior to separation from service also did not report symptoms of peripheral neuropathy. In December 2004, the Veteran was seen by a private physician for a history of peripheral polyneuropathy. EMG testing was reported to be consistent with minimal to mild polyneuropathy. The Veteran underwent a VA peripheral nerve examination in March 2018. The Veteran reported noticing symptoms of burning pain to lower legs and in his feet upon separation from service. He stated that he was unaware what the condition was at that time. He was then seen for generalized pain and burning of the body in 2004. An EMG done at that time showing peripheral neuropathy. He reported he continues to have pain to right and left lower legs and feet with intermittent numbness and tingling. A diagnosis of peripheral neuropathy of the left and right lower extremities was provided. The VA examiner opined that the Veteran's peripheral neuropathy condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that this opinion was based upon review of the Veteran's medical records, which did not demonstrate evidence of complaints, medical evaluations, or treatment for neuropathy during active duty or upon discharge. In March 2021, a narrative was completed by S.R.B., M.D., a physician specializing in internal medicine, pharmacology, and toxicology, on behalf of the Veteran. The physician opined that the Veteran's peripheral neuropathy is at least as likely as not secondary to his exposure to Agent Orange. The physician noted that the composition of Agent Orange, which contains dioxin (a benzene compound), has been shown by literature to have strong indications in causing peripheral neuropathy, similar to the Veteran's diagnosis. The examiner stated that benzene is a very toxic agent, even in small doses. It was noted that benzene exposure, even in environmental levels, might be associated with neurotoxicity with neuropathy in elderly, children, and adolescents. The physician stated that hydrocarbons such as dioxin/benzene are retained in some body tissues for a long time (even decades) so target organ exposure continues even after external exposure ceases. It was noted that the Veteran has been suffering from lower extremity neuropathy and numerous investigational modalities have yet to diagnose the etiology of his peripheral neuropathy. The examiner opined that given there are findings in his medical profile which have no etiology that exposure to Agent Orange is the more likely plausible nexus. After review of the evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for left and right lower extremity peripheral neuropathy. Initially, the Board finds that the medical evidence of record, including the March 2018 VA examination, provides a current diagnosis of left and right lower extremity peripheral neuropathy. Additionally, the Veteran's personnel records document that he served in the Republic of Vietnam from January 1968 to January 1969; therefore, his in-service exposure to herbicide agents is conceded. See 38 C.F.R. § 3.307(a)(6). Lastly, the Board finds that the evidence of record supports a nexus between the Veteran's current left and right lower extremity peripheral neuropathy and his in-service exposure to herbicide agents on a direct basis. The Board finds probative the positive opinion provided by S.R.B., M.D. The private examiner explained that exposure to herbicide agents, such as Agent Orange, has been shown by literature to have strong indications in causing peripheral neuropathy similar to the Veteran's diagnosis. Further, that even limited exposure to benzene, which is a component of Agent Orange, can be associated with neurotoxicity and neuropathy, and that hydrocarbons such as dioxin/benzene can be retained in some body tissues for a long time causing exposure to organs and tissues for years after external exposure ceases. Based upon the Veteran's history of exposure to herbicide agents and the lack of other explanation for his peripheral neuropathy, S.R.B., M.D. opined that the Veteran's peripheral neuropathy is at least as likely as not secondary to his exposure to Agent Orange. The Board finds the opinion provided by S.R.B., M.D. to be competent and credible, and as the report was based on accurate facts and review of the Veteran's medical records, the Board finds this opinion is entitled to significant probative weight as to the etiology of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes that the entire rationale for the negative opinion provided by the March 2018 examiner was based upon the lack of documented reports of symptoms of neuropathy during service and shortly after separation from service. The examiner did not discuss whether the Veteran's exposure to herbicide agents could have caused of peripheral neuropathy after external exposure ceased. The 2018 examiner also did not discuss the Veteran's documented EMG testing showing peripheral neuropathy as early as 2004 and his reports of symptoms of numbness since shortly after separating from service. As the VA examiner did not discuss the Veteran's reports or whether in-service exposure to benzene may have resulted in lower extremity peripheral neuropathy after service, the Board finds this opinion to be of lower probative value than the opinion provided by S.R.B., M.D. Thus, the Board finds that the evidence is at the very least in equipoise as to whether the Veteran's left and right lower extremity peripheral neuropathy has been caused by his in-service exposure to herbicide agents on a direct basis. As a result, the Board finds that the criteria for entitlement to service connection for left and right lower extremity peripheral neuropathy have been met. 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.M. Johnson, 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.