Citation Nr: 21072080 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 15-03 808A DATE: December 2, 2021 ORDER Service connection for a neurological condition of the feet, to include peripheral neuropathy, is granted. REMANDED Entitlement to service connection for essential tremors is remanded. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran's neurological condition of the feet, to include peripheral neuropathy, is at least as likely as not related to his service. CONCLUSION OF LAW The criteria for service connection for a neurological condition of the feet, to include peripheral neuropathy, have been met. 38 U.S.C. §§ 1110, 1113, 5107 (2018); 38 C.F.R. §§ 3.102, 3.301, 3.302, 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1965 to March 1967, including service in the Republic of Vietnam. In March 2018, the Veteran testified under oath before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. The Board remanded this claim for additional development in June 2018, April 2020, January 2021, and May 2021. Entitlement to service connection for a neurological condition of the feet, to include peripheral neuropathy, is granted. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board finds that the Veteran meets the criteria for service connection for peripheral neuropathy of the feet. First, there is no question that the Veteran has a diagnosis of a neurological condition of his feet. Diagnoses have ranged from peripheral neuropathy to erythromelalgia. See April 2019 and August 2021 VA examinations. Second, the Veteran reported noticing symptoms in his feet shortly after returning from his service in Vietnam. See March 2018 videoconference hearing. An April 2016 VA treatment record notes that the Veteran's clinical evaluation and Agent Orange history likely point toward sensory neuropathy. An April 2018 VA treatment record notes neurological symptom of tremor and neuropathy may be caused by Agent Orange exposure. A separate April 2018 private opinion notes that neurological symptoms of neuropathy may have been caused by exposure to Agent Orange in the Vietnam War. The Board notes that each of these statements is speculative. An April 2019 VA examiner diagnosed primary idiopathic erythromelalgia and opined that the cause of most cases is unclear and not identifiable but that most cases occur in individuals above age 60. Approximately 15 percent of primary erythromelalgia cases result from a gene mutation. Scientific literature does not support the premise that exposure to herbicide agents increases the risk of erythromelalgia. The Board finds this examination inadequate as the examiner did not address whether the Veteran's diagnosis could be directly related to service and also did not address the Veteran's report of symptoms in his feet shortly after returning from service. An April 2020 VA opinion provider noted that there was no evidence of peripheral neuropathy during service or proximate to service based on the Veteran's reported onset and diagnosis in January 2008. The opinion provider opined that, while peripheral neuropathy has been linked to exposure to herbicide agents, it is likely to manifest at the time of exposure or proximate to those exposures. The Board finds this opinion inadequate because the opinion provider did not address the Veteran's report of symptoms in his feet shortly after returning from service. An April 2021 VA opinion provider noted that the Veteran was diagnosed with small fiber neuropathy in 2008, 41 years post service. He also denied any peripheral neuropathy symptoms during a July 2001 Agent Orange evaluation. The opinion provider found no medical evidence presented to support the assertion that the Veteran's neuropathy was caused by exposure to herbicide agents decades earlier. The Board finds this opinion inadequate as the provider did not address whether the Veteran's diagnosis could be directly related to service. An August 2021 VA examiner diagnosed peripheral neuropathy and opined that the Veteran "did not have symptoms of peripheral neuropathy noted until 2008, so [his] claim and onset of symptoms do not fall within the expected time of exposure of [Agent Orange] to justify this condition being service connected." The examiner also concluded that nothing shows "clear causation of small fiber peripheral neuropathy 41 years post exposure" to Agent Orange. The Board finds this opinion inadequate since the sole basis of the negative opinion is that the Veteran's peripheral neuropathy did not manifest within one year of service. It also failed to consider the Veteran's testimony that he noticed symptoms with his feet shortly after his separation from service. The Board further notes that the examiner used the wrong standard, requiring "clear causation" instead of using the at least as likely as not standard. The record is clear that the Veteran does not have early onset peripheral neuropathy of the feet. Thus, presumptive service connection is not warranted for this disability. The Board has made four attempts to obtain adequate opinions that address the Veteran's contentions and is instead left with several medical opinions that are still inadequate. The Board finds the Veteran's testimony that he experienced symptoms in his feet shortly after returning from service both competent and credible and therefore assigns this statement significant probative weight. Thus, after resolving reasonable doubt in his favor, the Veteran's peripheral neuropathy of the feet is related to service, and service connection is therefore warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board notes that its grant of service connection is not based on exposure to herbicide agents. Rather, it is based on the Veteran's statements that he noticed symptoms in his feet shortly after his separation from service that has continued through the present. REASONS FOR REMAND Entitlement to service connection for bilateral essential tremors is remanded. The August 2021 VA examiner concluded that the term "Parkinsonism" includes bilateral essential tremors. However, it is still unclear from the examiner's response whether the Veteran has "Parkinsonism" based on his tremors for the purposes of applying the presumptive service connection principles under 38 U.S.C. § 1116. Unfortunately, another remand is required to answer this medical question. The matter is REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate clinician as to the nature and etiology of the Veteran's bilateral essential tremors. Whether an additional physical examination of the Veteran is necessary is left to the examiner's discretion. After a thorough review of the claim file, the examiner should address the following: (a) Does the Veteran have Parkinsonism? (b) If the answer to (a) is no, then is it at least as likely as not (50 percent probability or greater) that the Veteran's bilateral essential tremors had onset during or were otherwise related to service, to include his conceded exposure to herbicide agents? Although a thorough review of the claim file is required, the examiner's attention is also directed to the Veteran's statements that he had bilateral hand tremors since the 1980s. See February and May 2013 VA treatment records and April 2019 VA peripheral nerves examination. The Board also notes that the August 2021 VA opinion provider stated that "about half" of essential tremor cases result from genetic mutation and opined that it is likely that either the Veteran is "unaware" of essential tremor in his family history or that his genes are the first to have carried that genetic mutation. The opinion provider is asked to comment on this opinion and address the other half of essential tremor cases that do not result from genetic mutation. (CONTINUED ON NEXT PAGE) 2. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.