Citation Nr: 21070288 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-40 604A DATE: November 23, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the left upper extremity, as a result of in service herbicide agent exposure, to include Agent Orange, is granted. Entitlement to service connection for peripheral neuropathy of the right upper extremity, as a result of in-service herbicide agent exposure, to include Agent Orange, is granted. FINDING OF FACT The evidence is in relative equipoise regarding whether the Veteran's bilateral upper extremity peripheral neuropathy was due to his service, specifically to include in-service exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the left upper extremity, as a result of in-service herbicide agent exposure, to include Agent Orange, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for peripheral neuropathy of the right upper extremity, as a result of in-service herbicide agent exposure, to include Agent Orange, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1966 to July 1969. This appeal to the Board of Veteran's Appeals (Board) arose from a February 2014 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In November 2018 and June 2021, the Board remanded this appeal for further evidentiary development. In July 2020, the Agency of Original Jurisdiction (AOJ) granted service connection for bilateral lower extremity peripheral neuropathy, as secondary to service-connected lumbar spine disability. As the Veteran has not yet filed an NOD contesting either the effective date or the level of compensation assigned following that grant of service connection, these issues are no longer part of the current appeal. Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997). Service connection for peripheral neuropathy of the left upper extremity, as a result of in-service herbicide agent exposure Service connection for peripheral neuropathy of the right upper extremity, as a result of in-service herbicide agent exposure, to include Agent Orange The Veteran asserts that the peripheral neuropathy of his left and right upper extremities resulted from his in-service exposure to herbicide agents. Medical evidence of the record establishes that he has a current diagnosis of peripheral neuropathy of his upper extremities. He has verified service in Vietnam during the applicable time period. Thus, exposure to herbicide agents is conceded. Service connection requires evidence showing that a current disability was incurred during, or was aggravated by, service. 38 U.S.C. § 1110; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. §3.303(a). Even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide agent exposure, VA must also consider the claim on a direct service connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Regarding whether there is a nexus, a September 2019 VA examiner opined that it was less likely than not that the Veteran's bilateral upper extremity neuropathy was due to his service. The examiner explained that the claimed condition did not become first manifest within one year after his last exposure to herbicides. As previously stated, although a disease was first diagnosed or manifested outside of the applicable presumptive period, service connection can still be established on a direct basis. This opinion is not sufficient in resolving the question of nexus. An August 2021 VA clinician explained that there were no in-service notations regarding neuropathic symptoms and that early onset of peripheral neuropathy can present as weakness, burning, tingling, or numbness of the extremities. However, the clinician continued that the Veteran presented with a history of symptoms during service that are not consistent with the pathophysiology of peripheral neuropathy, in so far as lay statements from him and his siblings involve both sensory and motor dysfunction with a progression of the sensory component over time with numbness in the fingers. The examiner stated that the Veteran's bilateral lower extremity neuropathy symptoms have been found to be associated with the lumbar spine condition and that, in most cases of Agent Orange related peripheral neuropathy, it presents as symmetrical for upper and lower extremities, or began in the feet in a symmetrical pattern with later involvement of the upper extremities. The examiner concluded that the Veteran's history of peripheral nerve symptoms is not consistent with Agent Orange peripheral nerve pathophysiology. As mentioned in the opinion, the Veteran's siblings have asserted to witnessing the Veteran experience symptoms of numbness and dropping items shortly after his separation from service. See August 2014 Affidavits. The Board also notes that, in an August 1991 VA examination, the Veteran complained of tingling and loss of sensation in his fingers and toes. It was noted that the onset of these symptoms was from "1985" and are ongoing. In that examination, the Veteran was assessed to have probable peripheral neuropathy. The examiner continued that the diagnosis was confused by that fact that he also had disease of the cervical spine. However, the findings suggested a more peripheral form of neuropathy. There was no clear cause for this condition. In an October 1991 VA examination report, the Veteran reported that, for the last 15 years, he had a gradual sensory loss in his feet and hands. Upon examination, there was minimal evidence to support a diagnosis of peripheral neuropathy and nothing to determine the etiology of any neuropathy. The examiner suggested that the Veteran's alcohol use may be a possibility. In a November 2008 VA Primary Care Note, regarding the Veteran's peripheral nerve disease, this condition was described as being present "long term [and] predating his having had prior cervical and lumbar surgeries." See June 2009 VA Medical Treatment Records. After a thorough consideration of the evidence of the record, the Board finds that the evidence is in relative equipoise regarding whether the Veteran's bilateral upper extremity peripheral neuropathy was due to his service, specifically his exposure to herbicide agents. VA treatment records have indicated that there was no clear cause or etiology for his neuropathy. The Board has considered the VA medical opinions which concluded that Veteran's bilateral upper extremity neuropathy was not related to herbicide exposure. However, those opinions essentially are based on the service treatment records showing no complaints regarding neuropathic symptoms and the finding that his relevant symptoms first manifested more than one year after separation from service. However, the Board has considered the statements from the Veteran and his family noting neuropathic symptoms shortly after his separation from service. Those described symptoms were noted in treatment records when assessing and diagnosing him with peripheral neuropathy. The Board acknowledges that the evidence in this case is not explicitly clear in resolving the issue regarding the specific onset of the Veteran's bilateral upper extremity peripheral neuropathy. However, significant time has already been spent in this appeal to attempt to develop the evidentiary record to resolve these uncertainties. Unfortunately, these uncertainties remain unresolved. Considering what has been proffered in the opinions, taken with the available medical and lay evidence of the record, there is enough competent evidence to raise a reasonable doubt regarding the onset of the peripheral neuropathy of the Veteran's upper extremities. When a reasonable doubt arises, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Resolving all reasonable doubt in favor of the Veteran, the Board finds that a nexus has been established. Accordingly, the criteria for service connection for bilateral upper extremity peripheral neuropathy have been met, and entitlement to service connection for this bilateral disability is warranted. As the Board is granting service connection for bilateral upper extremity peripheral neuropathy based on in-service herbicide exposure (in other words, service connection on a direct basis), the alternative theory of secondary service connection will not be discussed. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.