Citation Nr: 21070333 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-56 550 DATE: November 23, 2021 ORDER Entitlement to service connection for bilateral upper extremity peripheral neuropathy as due to exposure to herbicide agents is granted. Entitlement to service connection for bilateral lower extremity peripheral neuropathy as due to exposure to herbicide agents is granted. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and is presumed to have been exposed during such service to certain herbicide agents, including Agent Orange. 2. Evidence of record reasonably demonstrates the Veteran's peripheral neuropathy of the bilateral upper and lower extremities are due to herbicide exposure by a showing of continuity of symptomatology and medical evidence of a positive etiological nexus. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral upper extremity peripheral neuropathy as due to exposure to herbicide agents have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral lower extremity peripheral neuropathy as due to exposure to herbicide agents have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to July 1968, with service in the Republic of Vietnam (Vietnam). These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran presented testimony before the undersigned Veterans Law Judge. . Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, such as organic diseases of the nervous system, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). The Board observes that the Veteran served in the Vietnam. Veterans who, during active 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. §§ 1116; 38 C.F.R. § 3.307. If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and subacute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309(e). The enumerated diseases include acute and subacute peripheral neuropathy. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e), 3.313, 3.318. However, the Board must also consider whether the Veteran's bilateral peripheral neuropathy was directly caused by herbicide exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for certain chronic disabilities, including peripheral neuropathy, due to herbicide exposure, which may also be evinced by a continuity of symptomatology. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); 38 C.F.R. § 3.303 (b). In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for bilateral upper extremity peripheral neuropathy as due to exposure to herbicide agents is granted. 2. Entitlement to service connection for bilateral lower extremity peripheral neuropathy as due to exposure to herbicide agents is granted. Service connection for the Veteran's bilateral upper and lower extremity peripheral neuropathy is warranted. Significantly, the Veteran's service treatment records note "marble movement" on the balls of both of his feet in November 1967 and bilateral foot trouble, "now in right hand" in December 1967. At his November 2021 hearing, the Veteran explained this 1967 trouble involved numbness in his feet and hands, and that he has experienced numbness and tingling sensations, which are observable symptoms capable of lay observation but not attribution, since service. See Jandreau, 492 F.3d 1372. The record also includes statements from the Veteran's wife and medical evidence from the Veteran's prior, long-time treating physician that support this finding. Notably, the Veteran and his wife have been in a relationship since 1963 or 1964 and married since 1966. In October 2014 and September 2016, the Veteran's wife submitted statements noting the Veteran complaining of numbness, pain, and tingling in his arms and legs since his return from service. His wife also explained he began seeing physicians who have since passed about these sensations beginning from his time in service to the early 1970s. He then saw a Dr. J.H. from 1972 until 2009, when the doctor closed his office. His wife explained his treatment from Dr. J.H. included addressing his numbness, pain, and tingling sensations. The Board has no reason to doubt the veracity of the Veteran or his wife's statements regarding the history of symptoms the Veteran has experienced, as they are consistent with the available medical evidence. Unfortunately, medical records from the since deceased physicians and Dr. J.H. are unobtainable, as they have been destroyed. However, Dr. J.H submitted letters in November 2015 and July 2016 that support the Veteran and his wife's statements and testimony regarding a continuity of numbness, pain, and tingling sensations since service and provide a positive nexus between the Veteran's current disability and his exposure to herbicide agents in service. In his November 2015 letter, Dr. J.H. noted the Veteran's medical records have been destroyed per policy and opined the Veteran's current peripheral neuropathy developed as a result of frequent exposure to Agent Orange while serving in Vietnam. In July 2016, Dr. J.H. clarified that when the Veteran initially sought treatment in 1972, he complained of tingling and numbness in his hands and legs that had been ongoing for several years. The doctor further explained that he initially rendered a diagnosis of tendonitis, given the limited medical knowledge at the time regarding peripheral neuropathy. Dr. J.H. then rationalized that given new medical evidence of peripheral neuropathy's relationship to exposure to Agent Orange and EMG testing in the Veteran's file which ruled out other causes of the Veteran's peripheral neuropathy, that the Veteran's current upper and lower extremity peripheral neuropathy are more likely than not related to his frequent exposure to Agent Orange in Vietnam. Finally, Dr. J.H. also concluded that based on this evidence, his initial diagnosis of tendonitis was incorrect, suggesting the 1972 diagnosis of tendonitis should instead have been peripheral neuropathy. These medical findings are consistent with and thus support the Veteran and his wife's descriptions of his numbness, pain, and tingling sensations since service. Moreover, the Board finds Dr. J.H.'s positive nexus opinion relating the Veteran's current peripheral neuropathy to his in-service Agent Orange exposure highly probative, as it includes a reasoned medical explanation connecting medical evidence to the conclusion, and was based on nearly four decades of treating the Veteran for numbness, pain, and tingling in his bilateral upper and lower extremities. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There are no medical opinions on file that contradict this opinion. The Board acknowledges the July 2015 VA conclusion that the Veteran's records do not support a finding of early onset peripheral neuropathy; however, finds this opinion irrelevant. Most significantly, the disabilities for which service connection are herein granted are not early onset peripheral neuropathies, but peripheral neuropathies. Moreover, the Board is unable to discern whether the physician who reviewed the Veteran's record was aware of the Veteran's 1967 foot and hand complaints, as no evidence was cited for the conclusion. Accordingly, medical and lay evidence weighs in favor of finding the Veteran has experienced a continuity of symptoms associated with bilateral upper and lower extremity peripheral neuropathy since service, as well as an etiological relationship between the Veteran's current peripheral neuropathies and his exposure to Agent Orange in service. Service connection is warranted. The appeal is granted. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.A. Infante, 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.