Citation Nr: 21069793 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-65 186 DATE: November 19, 2021 ORDER Entitlement to service connection for bilateral lower extremity peripheral neuropathy, due to Agent Orange exposure, is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's bilateral lower extremity peripheral neuropathy is due to his exposure to Agent Orange. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral peripheral neuropathy due to Agent Orange have been met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from September 1968 to June 1971, including combat service in Vietnam. This matter comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a May 2017 rating decision that denied service connection for right and left foot peripheral neuropathy. The Veteran filed a notice of disagreement (NOD) in June 2017, appealing only the denial of his right foot peripheral neuropathy. Following a November 2017 Statement of the Case (SOC), the Veteran filed a timely substantive appeal to the Board (via VA Form 9) in December 2017. In a March 2017 Board hearing regarding peripheral neuropathy of his upper extremities, he testified he has "the same problem in my lower extremities too," noting numbness in his feet. Additionally, in an April 2017 VA examination, the Veteran contended that the peripheral neuropathy in both of his feet were related to his in-service Agent Orange exposure, and the record frequently speaks of bilateral peripheral neuropathy of the lower extremities. Thus, despite the Veteran specifically appealing only the denial of service connection for his right foot, the issue of entitlement to service connection for left lower extremity peripheral neuropathy has been raised by the record as a related complication of the right lower extremity peripheral neuropathy and the Board will therefore address this issue as well. 38 C.F.R. § 3.155(d)(2). The Veteran was afforded a Board video hearing by the undersigned Veterans Law Judge in September 2021. Although the transcript of the hearing has not yet been associated with the claims file, one is not necessary to decide the issue before the Board in this case, which is being granted in full. Service Connection The Veteran contends that his bilateral lower extremity peripheral neuropathy is due to his in-service Agent Orange exposure. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted 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 may also be established on a presumptive basis for if a veteran was exposed to an herbicide agent, such as Agent Orange, during service. See 38 U.S.C. § 1116 (a)(1); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Veterans who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975, are presumed to have been exposed during such service to Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Here, the Veteran's service personnel records confirm that he served in the Republic of Vietnam during the relevant time period. Thus, in-service exposure to an herbicide agent, specifically Agent Orange, is conceded. Under 38 U.S.C. § 1116(a)(2) and 38 C.F.R. § 3.309 (e), peripheral neuropathy is not a disease presumed service connected to herbicide agent exposure unless it is early onset. However, service connection may still be granted on a direct, actual causation basis. See 38 U.S.C. § 1113(b) (2012); 38 C.F.R. § 3.303(d) (2017) (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) (Radiation Compensation Act does not preclude a Veteran from establishing service connection with proof of actual direct causation). In an April 2017 VA examination, the Veteran was diagnosed with peripheral neuropathy of both lower extremities, thereby satisfying the current disability element. Considering Agent Orange exposure has already been conceded, the dispositive issue is whether there is a connection between the Veteran's Agent Orange exposure and his current bilateral lower extremity peripheral neuropathy. With regard to nexus, there are competing medical opinions. A December 2009 private physician, who had been examining the patient since 1999, noted the Veteran had a constellation of musculoskeletal issues and that exposure to various agents in Vietnam could be a plausible explanation. The VA does not have a treating physician rule. See White v. Principi, 243 F.3d 1378, 1381 (Fed. Cir. 2000) ("[T]he VA benefits statutes and regulations do not provide any basis for the 'treating physician' rule and, in fact, appear to conflict with such a rule). The examiner also does not specifically reference the Veteran's peripheral neuropathy, although his reference to the Veteran's constellation of musculoskeletal issues could plausibly encompass the Veteran's diagnosed disability. The private physician provided a substantially similar medical opinion again in December 2013. Considering the above, as the private physician considered the Veteran's Agent Orange exposure as a plausible explanation, the opinions warrant probative value. In an October 2016 progress note, a different private physician examined the Veteran, noted a history of Agent Orange exposure in service, diagnosed the Veteran with polyneuropathy, and stated she suspects this could be due to the noted Agent Orange exposure. While the examiner did not provide a thorough rationale to accompany his opinion, an examiner need not explicitly lay out their journey from the facts to a conclusion in order for an opinion to be considered probative. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate). Reading the physician's opinion as a whole and in context of the evidence of record and the examination of the Veteran, the conclusion that the Veteran's peripheral neuropathy is related to his in-service Agent Orange exposure is entitled to substantial probative weight. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). In a January 2017 EMG consult, a third private physician followed up on EMGs of the lower extremities and diagnosed peripheral neuropathy. The physician concluded, after noting earlier in the report that the Veteran had extensive in-service Agent Orange exposure, that the most likely etiology of the Veteran's peripheral neuropathy of the bilateral lower extremities was Agent Orange. As this opinion was declarative and followed a review of the EMG, it is afforded significant probative weight. See Monzingo v. Shinseki, 26 Vet. App at 106; Acevedo v. Shinseki, 25 Vet. App. at 294. In April 2017, a VA examiner provided a negative medical opinion where he concluded that the Veteran's peripheral neuropathy was not related to his in-service Agent Orange exposure because the onset of his symptoms was not until 2012 and therefore would not meet the early-onset requirement for presumptive service connection. The examiner opined that the most likely cause, rather, was his alcohol dependence, which is one of the more common causes of neuropathy in the VA population. While the VA examiner's opinion is correct with regards to presumptive service connection, it does not weigh against a determination of a direct nexus. Moreover, the VA examiner alludes to alcohol dependence being the most likely cause, citing to alcohol dependence as a common cause of neuropathy among the VA population without speaking directly to the Veteran's specific circumstances. Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (a medical opinion that relies on the absence of general medical literature supporting nexus without discussing the specific facts of the case is inadequate). For the reasons described, this opinion is inadequate and is afforded no probative weight. In April 2017, a private orthopedist examined the Veteran's hands and diagnosed the Veteran with carpal tunnel and neuropathy. After a thorough examination, the private orthopedist concluded that the Veteran's Agent Orange exposure while in service is the most likely cause of the Veteran's polyneuropathy. Although this opinion was a reference to the Veteran's wrist neuropathy, polyneuropathy is a disability of the nerves and this opinion could also be interpreted to apply to the Veteran's lower extremities as well. As this opinion followed a thorough examination, it is afforded significant probative weight. Lastly, a January 2019 VA examiner provided a negative medical opinion, concluding that the remote exposure to Agent Orange, the long delay in onset of symptoms and the continuous alcohol consumption makes it much more likely that the Veteran's peripheral neuropathy is related to alcohol consumption. The VA examiner also responded to prior medical opinions of record for failing to address the "obvious alcohol consumption as an etiological factor." However, service connection does not require that service be the only etiology, but rather that a current disability be related to service. For those reasons, the VA examiner's medical opinion is worthy of limited probative value. The above evidence reflects that there are a number of competent, probative medical opinions that weigh in favor of service connection for the Veteran's bilateral lower extremity peripheral neuropathy, and two medical opinions of limited or no probative value that weigh against. The evidence is therefore at least evenly balanced as to whether the Veteran's bilateral lower extremity peripheral neuropathy is due to his in-service Agent Orange exposure. As the reasonable doubt by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral lower extremity peripheral neuropathy, as due to Agent Orange exposure, is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board JR Cummings, 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.