Citation Nr: 21070719 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 19-18 694 DATE: November 24, 2021 ORDER Entitlement to service connection for right lower extremity peripheral neuropathy is granted. Entitlement to service connection for left lower extremity peripheral neuropathy is granted. FINDING OF FACT The Veteran's bilateral lower extremity peripheral neuropathy is related to presumed in-service herbicide agent exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral lower extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 1113, 1116; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1969 to August 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied the claims of service connection for bilateral lower extremity peripheral neuropathy. In November 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a virtual hearing. A transcript of that hearing is not necessary given that the Board is granting the benefits sought in full. Entitlement to service connection for bilateral lower extremity peripheral neuropathy The Veteran contends his bilateral lower extremity peripheral neuropathy symptoms are related to herbicide agent exposure while serving in Korea. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. 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 service when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). VA laws and regulations provide that, if a veteran was exposed to herbicide agents during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A veteran who served in the Korean Demilitarized Zone (DMZ) between September 1967 and August 1971 is presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116B. In this case, VA conceded in a June 2013 memorandum that the Veteran is presumed to have been exposed to herbicide agents during his service in or near the Korean DMZ. Early-onset peripheral neuropathy, but not delayed onset peripheral neuropathy, is a disease on the list of those presumed service-connected in veterans exposed to herbicide agents. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). Early-onset peripheral neuropathy is defined as peripheral neuropathy that becomes manifest to a degree of 10 percent or more within one year after the Veteran's last in-service exposure. 38 C.F.R. § 3.307(a)(6)(ii). The absence of diseases on the list of those presumed service-connected in veterans exposed to herbicide agents does not preclude a veteran from alleging that the non-presumptive diseases with which he has been diagnosed are related to herbicide agent exposure. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). In an October 2017 statement, the Veteran's wife reported that the Veteran experienced loss of balance issues that have bothered him throughout their marriage of over 40 years. In an August 2017 VA treatment note, a VA physician opined that the Veteran's peripheral neuropathy was more likely than not due to his herbicide agent exposure because he did not have diabetes mellitus. In March 2018, a VA examiner noted that the Veteran was diagnosed with peripheral neuropathy of the lower extremities in 2007. The examiner did not provide a nexus opinion. In the Veteran's substantive appeal (VA Form 9), the Veteran indicated that he has experienced numbness in his ankles since the 1980s. For the following reasons, entitlement to service connection for bilateral lower extremity peripheral neuropathy is warranted. In March 2018, a VA examiner noted the Veteran's 2007 diagnoses of bilateral lower extremity peripheral neuropathy. Thus, the Veteran meets the current disability requirement. VA conceded in a June 2013 memorandum that the Veteran is presumed to have been exposed to herbicide agents during his service in or near the Korean DMZ. Thus, the Veteran meets the in-service injury or disease requirement. The Veteran and his wife reported that he experienced numbness and balance issue symptoms since service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (Fed. Cir. 2006) (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The Veteran's and his wife's reports are competent and credible. Moreover, the Veteran reported in private treatment records including in August 2017 that he recalled his numbness of the feet started in service. This statement is particularly credible because it was made during the course of treatment. Fed. R. Evid. 803(4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). A VA physician offered a positive opinion in August 2017 with regard to the Veteran's bilateral lower extremity peripheral neuropathy and its relation to herbicide agent exposure. She indicated that given the lack of a diabetes diagnosis along with the other evidence, it was more likely than not that the Veteran's peripheral neuropathy was due to Agent Orange exposure. Reading the opinion as a whole and in the context of the evidence of record, it reflects consideration of the possible causes of the peripheral neuropathy and of the progress and course of the symptoms as reflected by the evidence including the Veteran's lay statements, and concluded that the most likely cause of the disease was Agent Orange exposure. 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). Consequently, the opinion is entitled to some probative weight. There is no contrary opinion in the evidence of record. For the foregoing reasons, there is competent, probative evidence of current disability, in-service injury, specifically herbicide agent exposure, and a nexus between the two. Entitlement to service connection for bilateral lower extremity peripheral neuropathy is therefore warranted. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.