Citation Nr: 21068556 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-18 621 DATE: November 10, 2021 ORDER Entitlement to service connection for right upper extremity neuropathy is denied. Entitlement to service connection for left upper extremity neuropathy is denied. Entitlement to service connection for right lower extremity neuropathy is denied. Entitlement to service connection for left lower extremity neuropathy is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's current bilateral upper and lower extremities neuropathies manifested to a compensable degree within one year of his separation in April 1969, or otherwise related to his active duty service or had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for right upper extremity neuropathy have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for left upper extremity neuropathy have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 3. The criteria for service connection for right lower extremity neuropathy have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 4. The criteria for service connection for left lower extremity neuropathy have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to April 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018 and August 2021, the Board remanded the matters for additional development. Now the matters are returned to the Board. The Veteran is seeking service connection for neuropathies of bilateral upper and lower extremities. He contends that his current condition is a result of his exposure to an herbicide agent in service. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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). Alternatively, 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." 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2020). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 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 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2020). Notably, early-onset peripheral neuropathy is listed under 38 C.F.R. § 3.309(e), if it became manifested to a compensable degree within one year of the last date a veteran was exposed to an herbicide agent during active service. 38 U.S.C, § 1116(a)(1) (2012); 38 C.F.R. § 3.307(a)(6)(ii) (2020). A presumption of service connection based on the herbicide exposure in the Republic of Vietnam during the Vietnam Era is not warranted for various other condition for which the VA Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32395-32407 (Jun. 12, 2007); see also Notice, 74 Fed. Reg. 21258-21260 (May 7, 2009). However, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for a disability due to herbicides exposure. See Combee v. Brown, 34 F.3d 1039 (1994). Also, the regulation provides that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2020). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. The evidence of record shows the Veteran's current disability of neuropathies of bilateral upper and lower extremities. See e.g., September 2021 Peripheral Nerves Conditions Disability Benefits Questionnaire. Also, the Veteran's exposure to an herbicide agent during his service in Korea is conceded. See June 2021 Rating Decision. However, the Board finds that the preponderance of the evidence is against finding that the Veteran's current bilateral upper and lower extremities neuropathies manifested to a compensable degree within one year of his separation in April 1969, or otherwise related to his active duty service or had its onset in service. First, the Board notes that the Veteran's service treatment record (STR) does not show any complaints, diagnosis, or treatment related to a neuropathy condition. As to whether the Veteran's had early-onset neuropathies as defined in 38 C.F.R. § 3.307(a)(6)(ii), the September 2021 examiner found that the earliest documentation of the Veteran neuropathy was in 2005 after review of the medical records. The examiner also noted that the Veteran's STR does not show any complaints of lower extremity neuropathy or pain at the time of his lower back treatment in service. The examiner concluded that the Veteran's neuropathies of bilateral upper and lower extremities do not meet the presumptive service connection criteria for herbicide exposure, and opined that his current condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board acknowledges that the September 2021 examiner found that the Veteran's current neuropathy condition is secondary to his cervical and lumbar spine conditions, and his lumbar spine condition was aggravated by his service. However, the Veteran is not currently service-connected for cervical spine or lumbar spine condition, and there is no pending service connection claim for either conditions. Thus, the September 2021 examiner's findings cannot serve to establish service connection for neuropathies on a secondary basis. The Board advises that the Veteran is free to submit a new service connection claim for cervical or lumbar spine condition if he wishes to do so. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Veteran's entitlement to service connection for neuropathies of bilateral upper and lower extremities is not warranted. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.