Citation Nr: 21072135 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 20-01 604 DATE: December 2, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the left lower extremity is granted. Entitlement to service connection for peripheral neuropathy of the right lower extremity is granted. Entitlement to service connection for benign brain tumor is denied. FINDINGS OF FACT 1. The evidence of record is roughly in equipoise as to whether the Veteran's peripheral neuropathy of the left lower extremity arose during or as a result of his active service. 2. The evidence of record is roughly in equipoise as to whether the Veteran's peripheral neuropathy of the right lower extremity arose during or as a result of his active service. 3. The preponderance of the evidence is against finding that the Veteran's benign brain tumor arose during or as a result of his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral neuropathy left lower extremity have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for entitlement to service connection for peripheral neuropathy right lower extremity have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for entitlement to service connection for benign brain tumor have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially requested a hearing before the Board in his January 2020 substantive appeal. However, in March 2021, the Veteran's representative waived the Veteran's right to any hearing in connection with this pending appeal and requested that the Board expedite this appeal. See 38 C.F.R. § 20.704(e). In May 2021, the Board remanded these claims for additional development. The Board finds that the RO substantially complied with its remand directives, and the Board may now proceed with adjudication. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "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" the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309(a). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. and 2. Entitlement to service connection for peripheral neuropathy of the left and right lower extremities The Veteran asserts that his bilateral peripheral neuropathy of the lower extremities arose during or as a result of his active service. He served during the Vietnam Era in Korea. See DD Form 214; August 1970 military personnel records. In this case, the Veteran's service treatment records (STRs) are negative for complaints, treatment, or diagnosis for peripheral neuropathy. The Veteran filed a claim for service connection for his lower back in June 2010 and mentioned that he experienced peripheral neuropathy as well. The Veteran's VA and private treatment records are negative for any mentions of peripheral neuropathy in the 12-month period immediately following active service. December 2016 VA treatment records reflect a diagnosis for peripheral neuropathy. In a February 2017 statement in support of his claim, the Veteran asserted that he made several trips to the Demilitarized Zone (DMZ) in Korea during his active service. In March 2017, the Veteran filed a new claim for peripheral neuropathy. The Veteran submitted a detailed private medical opinion in June 2020. The physician was an experienced military physician with expertise in occupational and environmental medicine. She provided a detailed review of the Veteran's military, medical, and claims history. The Veteran reported that he had experienced numbness or tingling in his legs for approximately 30 years prior to a medical appointment in 2017. She stated that the medical evidence suggested that the Veteran's peripheral neuropathy of the lower extremities had likely been present for a long time and could have been caused by herbicide exposure. Based on her review of his military and medical history, the physician opined that his bilateral peripheral neuropathy at least as likely as not arose during or as a result of his active service. In another June 2020 private medical opinion, the same physician stated that the Veteran was positive for radiculopathy secondary to his back condition and for peripheral neuropathy, which was a separate condition with a different etiology. During the Veteran's July 2021 VA examination for peripheral nerve conditions, the VA examiner noted diagnoses for peripheral neuropathy of each lower extremity dating to 1971. In accompanying August 2021 VA medical opinions, the VA examiner opined that the claimed conditions were at least as likely as not caused by military service. The examiner noted that the Veteran's STRs were negative for any mention of peripheral neuropathy. However, the examiner found the June 2020 private medical opinion convincing and agreed with the physician's conclusion that his peripheral neuropathy was at least as likely as not due to service, including potential herbicide exposure. Conversely, in an October 2021 VA medical opinion, the VA examiner found the Veteran's conditions to be less likely than not related to service. Their rationale stated that there was insufficient evidence connecting his conditions to service and any connection to potential herbicide exposure could not be made without resorting to speculation. They opined that his non-service-connected back condition was more likely the cause for his peripheral neuropathy, as the back condition was diagnosed in 2011. The Board finds the evidence of record is roughly in equipoise as to whether the Veteran's peripheral neuropathy of the lower extremities began during or as a result of his active service. The STRs are negative for peripheral neuropathy, and the first documented treatment for the condition occurred decades after service. However, the Veteran has stated that he has experienced numbness and tingling in his legs for decades, and it worsened over time. The June 2020 private medical opinion offers the most detailed and comprehensive opinion concerning the Veteran's claimed conditions and was authored by a physician with extensive experience and expertise in the fields relevant to this claim. Additionally, the author states that his condition is consistent with it being present for a long period of time. The July 2021 VA examination report supports the Veteran's claim, but it is primarily based on the June 2020 private opinion. Conversely, the October 2021 VA examination report found the Veteran's condition less likely than not related to service, based primarily on the lack of evidence of the conditions being connected to service. Based on these facts, the Board finds that the evidence of record is roughly in equipoise as to whether the Veteran's claimed conditions arose during or as a result of his active service. Accordingly, the benefit of the doubt will be given to the Veteran, and the claims for service connection for peripheral neuropathy of the lower extremities are granted. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for benign brain tumor The Veteran asserts that his benign brain tumor arose during or as a result of his active service and has broadly claimed exposure to herbicides while he was stationed in Korea. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). That said, a benign brain tumor is not among the diseases listed in 38 C.F.R. § 3.309(e). As such, the Board will only address this claim on a direct service connection basis, as the herbicide regulations are inapplicable here. Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). The Veteran's STRs are negative for complaints, treatment, or diagnosis of a brain tumor. The Veteran's VA and private treatment records are negative for treatment of a brain tumor in the 12-month period immediately following active service or for any medical opinions supporting the Veteran's claim. February 2017 VA treatment records reflect that he underwent an operation to remove a brain tumor in 1989. In March 2017, he submitted a claim for service connection for a brain tumor. The Board acknowledges that the Veteran has not been afforded a VA examination for this claim. VA's duty to assist includes providing a medical examination when necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury, or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, there is no medical evidence of an event, injury, or disease in service. Moreover, there is no competent medical opinion or other evidence linking a current diagnosis of the claimed disabilities on appeal to the Veteran's active service. The Veteran himself has not demonstrated the training and credentials necessary to provide a competent opinion as to causation. He was not diagnosed with a brain tumor until 1989, more than a decade after leaving service. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered, in the broader context of the record, as evidence against a claim for service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In the absence of competent evidence supporting the claim for service connection for a benign brain tumor, the Board finds that the preponderance of the evidence is against the Veteran's claim, and it is denied. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.