Citation Nr: 21072935 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 15-32 230 DATE: December 6, 2021 ORDER Entitlement to service connection for sarcoidosis as due to exposure to herbicide agents is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam Era, and is presumed to have been exposed to an herbicide agent such as that found in Agent Orange. 2. The Veteran's sarcoidosis has been medically linked to his in-service exposure to an herbicide agent. CONCLUSION OF LAW The criteria for service connection for sarcoidosis have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2018. A transcript is of record. This matter was previously remanded by the Board in April 2019 and March 2021 for further development. Entitlement to service connection for sarcoidosis as due to exposure to herbicide agents is granted. Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the "nexus" element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021) (holding that if the positive and negative evidence is in approximate balance, which includes but is not limited to equipoise, the claimant receives the benefit of the doubt). The Board finds that service connection for the Veteran's sarcoidosis is established, for the reasons that follow. The Veteran served in the Republic of Vietnam from 1969 to 1970, and is presumed to have been exposed to an herbicide agent during that service. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307 (a)(6)(i). Certain diseases associated with exposure to an herbicide agent shall be presumed to be service connected even if there is no evidence of the disease in service, provided there is no affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(d), 3.309(e). The diseases that have been associated with exposure to certain herbicide agents for purposes of the presumption do not include sarcoidosis. 38 C.F.R. § 3.309(e). The Veteran's treatment records show he was diagnosed with sarcoidosis in approximately 1992. As noted, sarcoidosis does not qualify for the presumption of service connection based on in-service herbicide exposure. Although presumptive service connection for sarcoidosis based on in-service herbicide exposure is not available, direct service connection may still be established with proof of causation. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that the "availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); accord Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009) ("Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection"); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding that the availability of service connection on a presumptive basis does not preclude a claimant from substantiating the claim with proof of direct causation). The probative evidence supports direct service connection. Specifically, the Veteran asserts that his sarcoidosis is related to his active duty service, specifically his exposure to herbicides in Vietnam. See November 2013 NOD. He stated that he began to experience shortness of breath and trouble breathing upon returning home from Vietnam. Id. The Board finds the Veteran's statement that he began to experience shortness of breath and trouble breathing upon returning home from Vietnam to be both competent and credible. The Veteran was afforded a VA examination in July 2021. The examiner concluded that the Veteran's sarcoidosis was at least as likely as not (50 percent or greater probability) incurred in or caused by his in-service exposure to Agent Orange. The examiner noted the Veteran's account of sarcoidosis that began following active duty, became chronic, and is currently present. The examiner also noted that the Veteran is a life time non-smoker The July 2021 VA medical opinion is probative, as it is the conclusion of a medical professional with relevant expertise, is based on the Veteran's competent and credible report that he began to experience shortness of breath and trouble breathing upon returning home from Vietnam, and is supported by an explanation sufficient to make an informed decision. Because a current disability, in-service herbicide exposure, and a link between that disability and the Veteran's herbicide exposure is established, the criteria for service connection for sarcoidosis on a direct basis are satisfied. See Holton, 557 F.3d at 1366. REASONS FOR REMAND Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to exposure to herbicide agents is remanded. The Veteran asserts that he developed peripheral neuropathy of the lower extremities as a result of being exposed to herbicides during active service. See October 2018 Hearing Transcript. A review of the file reflects that the Veteran first started experiencing neurological symptoms in his lower extremities in the late 1970's or 1980's. See VA treatment record, dated November 6, 2009; Veteran's statement received November 26, 2013; and Hearing Transcript, dated October 15, 2018. Pursuant to the March 2021 Board remand, the Veteran was afforded a VA examination in July 2021. The July 2021 VA examiner concluded that the Veteran's peripheral neuropathy of the lower extremities was related to service. The examiner reasoned that the Veteran provided a credible account that this peripheral neuropathy began after active duty, that it became chronic, and that he was presumed to be exposed to Agent Orange. However, the examiner mistakenly referred to post-service treatment records as service treatment records, recalling a November 2009 medical record which noted bilateral foot numbness in 1989. As noted above, the Veteran was separated from service in 1971 and has reported the onset of neurological symptoms in his lower extremities in the late 1970's or 1980's. As such, the RO ordered an addendum opinion, noting that the examiner mistakenly cited STR's which were dated after the Veteran already separated from service in 1971. See August 2021 Exam Request. The July 2021 VA examiner offered an addendum opinion in August 2021, where she changed her opinion to a negative nexus. In regard to the Veteran's bilateral neuropathy of the lower extremities, the examiner stated that it was less likely due to Agent Orange as there was no medical literature to support a connection as the condition did not occur within one year of service. The Board finds the August 2021 opinion inadequate, as the VA examiner did not offer a sufficient rationale. Additionally, the March 2021 Board remand directed the examiner that in the event a negative nexus was found for the Veteran's peripheral neuropathy, the examiner must specifically discuss what other factors caused the disorder. The August 2021 VA examiner did not discuss any other factors which caused the Veteran's bilateral neuropathy of the lower extremities. Therefore, the Board finds that the medical opinion did not substantially comply with the March 2021 remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The Board finds that a new VA medical opinion is necessary to fully address the nature and etiology of the Veteran's peripheral neuropathy of the lower extremities. The matters are REMANDED for the following action: 1. Return the file to the July/August 2021 VA examiner or a suitable substitute to determine whether the Veteran's peripheral neuropathy of the lower extremities is related to service, to include conceded Agent Orange exposure. The entire claims file, to include a copy of this REMAND, must be reviewed by the examiner in conjunction with the examination. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the examination. The examiner is requested to address whether it is at least as likely as not (50 percent probability or greater) that the Veteran's peripheral neuropathy of the lower extremities had its onset during service or is related to any incident of service, to include his conceded exposure to herbicides. In providing this opinion, the examiner should consider the Veteran's statements that he first started experiencing neurological symptoms in his lower extremities in the late 1970's or 1980's, several years after his separation from service. If the examiner determines that the Veteran's peripheral neuropathy of the lower extremities is less likely than not due to his in-service exposure to herbicides, he or she should specifically discuss what other factors caused the disorder(s). The examiner must provide a complete rationale for all opinions provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Mohammad 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.