Citation Nr: 21074780
Decision Date: 12/16/21	Archive Date: 12/16/21

DOCKET NO. 19-22 264
DATE: December 16, 2021

ORDER

Entitlement to service connection for peripheral neuropathy of the right lower extremity is granted.

Entitlement to service connection for peripheral neuropathy of the left lower extremity is granted.

FINDINGS OF FACT

1. Based on the facts found and resolving all reasonable doubt favorably, the Veteran was exposed to herbicide agents during his Vietnam War service in Thailand.

2. The competent and credible evidence of record establishes the Veteran's peripheral neuropathy of the left and right lower extremities began in service or is otherwise etiologically related to an in-service event, injury, or disease.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served active duty in the United States Air Force from June 1967 to December 1970 with additional Reserve service. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a May 2017 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Board denied the Veteran's appeal in a May 2020 decision; however, the Veteran appealed the decision to the United States Court of Appeals for Veterans' Claims (Court). The Court granted an April 2021 Joint Motion for Remand (JMR) finding the Board relied on an inadequate examination in denying the Veteran's claim. The Board remanded the issue in August 2021 for an adequate examination, and the case has since been returned for further appellate review.

SERVICE CONNECTION

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Regulation provides that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 (e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a). Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to herbicide agents is not precluded from establishing service connection for such disability as due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

In rendering a decision on 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 evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal.

1. Entitlement to service connection for peripheral neuropathy of the right lower extremity, and

2. Entitlement to service connection for peripheral neuropathy of the left lower extremity

The Veteran contends he is entitled to service connection for peripheral neuropathy of the bilateral lower extremities. Specifically, he asserts his condition is the result of exposure to herbicide agents while serving at Takhli Royal Air Force Base (RAFB), Thailand throughout 1970. Statement in Support, 12/09/2016. He contends his symptoms began as tingling in the feet during service but was unaware of the association between herbicide agents and early onset peripheral neuropathy. He reports he did not seek treatment until roughly 1993 when his symptoms became more noticeable and began to limit his activities. Statement in Support, 12/04/2017.

There is no material dispute whether the Veteran has a current disability sufficient to satisfy the first element of service connection. The Veteran has a diagnosis of bilateral peripheral neuropathy of the lower extremities as evidenced by private treatment records and VA examinations in May 2017 and September 2021. 

Regarding the second element of direct service connection, the Veteran asserts he was exposed to herbicide agents during his active-duty service in Thailand. VA has determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand during the Vietnam War era. The Court has found that the herbicide agents may have been tactical, procured from the Republic of Vietnam, or a commercial variant of much greater strength and with the characteristics of tactical herbicides. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016). Therefore, VA provides special consideration of herbicide exposure on a factual basis for Veterans whose duties placed them at or near the perimeters of Thailand military bases from February 28, 1961, to May 7, 1975. Herbicide exposure may be conceded on a direct, facts-found basis in the case of veterans who served in the U.S. Air Force at one of the listed Royal Thai Air Force Bases, including U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhil, Korat, and Don Muang. If a veteran served on one of these bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis.

The Veteran's discharge certificate confirms he served 11 months foreign service and is in receipt of the Vietnam Campaign and Service Medals with a Bronze Star. Military personnel records show he served in Thailand from January 1970 through the end of 1970. MPR, 01/05/2017, pg. 5/54. An April 1970 performance report confirms the Veteran's duty station as Takhli Air Force Base, Thailand. Id. at pg. 47/54. Permanent change of station orders dated August 1970 indicate the Veteran was also directed to transit from his duty station to Don Muang Base. As such, the Veteran has confirmed service at one of the specified Air Force bases in Thailand during the applicable period of herbicide use.

The Veteran reports he was aware of the use of herbicide agents in Vietnam and recalls concurrent conversations with military personnel regarding the safety of its use; however, he states he was not aware at that time that herbicide agents were utilized at Thailand airbases. Form 9, 07/08/2019. He contends he was exposed to herbicide agents while servicing aircraft on the flight line for many hours at a time, suggesting this put him in close proximity to the perimeters of base. NOD, 12/04/2017.

Concerning the nature of the Veteran's exposure, his representative contends he was not given an opportunity to provide a more detailed statement concerning his MOS responsibilities, daily activity, or proximity to herbicide use because the Veteran was unaware the issue was in question until the Board's 2020 denial. Appellate Brief, 04/08/2021, pg. 9/10; see Smith v. Wilkie, 32 Vet. App. 332, 338 (2020) (holding a claimant has been denied fair process when VA's actions incorrectly lead them to conclude a factual matter has been resolved favorably and the claimant has not been provided meaningful opportunity to respond). The Veteran states he was informed by VA in August 2012 that he would be provided an examination concerning herbicide exposure due to his active duty in Thailand. See NOD, 12/04/2017, pg. 3/5. His representative contends herbicide exposure was not explicitly denied in subsequent rating decisions and the necessary development procedures pursuant to VA regulations were not conducted; therefore, the Veteran was led to believe the issue of herbicide exposure had been favorably resolved. Appellate Brief at 7/10. 

The Veteran's testimony is supported by his service records that show a foreign service MOS of electronic warfare systems repairman with duties in maintaining, modifying, aligning, and calibrating transmitter and radar equipment. Performance review records confirm he performed repair and maintenance of electronic countermeasure equipment on aircraft and performed inspections and assistance on the flight line. As he is competent to report his in-service experience, including the nature and location of his duties on Takhli RAFB, and the Board finds the Veteran credible, any remaining doubt on the issue is resolved in the Veteran's favor. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). 

Accordingly, based on the places, types, and circumstances of the Veteran's service, evidence that tends to corroborate his competent and credible lay assertions, and in the absence of any evidence to the contrary, presumed herbicide agent exposure is established. See 38 U.S.C. § 1154 (a); 38 C.F.R. §§ 3.102, 3.303(a).

While the RO concluded the Veteran's peripheral neuropathy did not become manifest to a compensable degree within one year from last exposure, the Veteran has consistently represented that he began to experience tingling in his feet while on active duty. He asserts he did not seek treatment immediately after separation because he was only 23 years old and did not believe it to be manifestations of a health condition until he was unable to perform his regular hobbies and leisure activities.

The Board finds the Veteran's reports of continued symptoms credible and are supported by a December 2017 statement of his spouse. Buddy Statement, 12/04/2017. She states she has known the Veteran since 1986, noticing he began to slowly lose feeling in his feet such that he could not perform the physical activities he once used to. She reports his symptoms became more noticeable in 1993 when his right foot began to tingle and lose feeling until it occurred in both feet. Over the next few decades his symptoms worsened such that walking short distances or completing daily tasks became difficult, resulting in a decreased in his quality of life. She notes that, while the Veteran experienced symptoms for many years, he did not receive treatment and was not diagnosis with peripheral neuropathy until October 2016.

Additionally, the medical evidence supports direct service connection based on a nexus relationship to his exposure. The Veteran submitted a July 2017 supporting statement from his treating neurologist, Dr. EF. MTR- Non-Gov, 12/04/2017. She indicates the Veteran received treatment for idiopathic sensorimotor neuropathy, however, search for an underlying metabolic or inflammatory cause yielded negative results. Included were 2016 results of a nerve conduction and electromyography study finding large fiber sensorimotor polyneuropathy of the lower extremities. Dr. EF completed a disability benefits questionnaire in August 2017 noting the Veteran's 2016 diagnosis with progressive numbness and tingling resulting in gait instability, atrophy, and hair loss. DBQ, 12/04/2017. The Veteran contends his peripheral neuropathy has not been attributed to an intercurrent cause as demonstrated by Dr. EF's letter, and is therefore linked to his exposure.

Further, the record contains a favorable opinion on the issue. The Veteran was provided VA examinations in May 2017 and August 2021. The May 2017 negative opinion, concluding a nexus did not exist because the Veteran was not diagnosed until years after service, served as the basis for the Board's 2020 denial. However, the Court subsequently found the opinion to be inadequate and the Veteran was given a new examination in August 2021. 

The August 2021 VA examiner opined the Veteran's symptoms likely began in service and continued to the present. She reasoned the Veteran presented a credible account of symptoms that began while on active duty that became chronic and continued currently. She additionally notes the Veteran's service included a station in Thailand with known herbicide exposure and provided consideration of the statement of the Veteran's spouse and neurologist. The VA examiner concluded the Veteran's bilateral peripheral neuropathy was at least as likely as not incurred in or caused by an injury, event, or illness during service.

Based on the facts found, credible lay statements, and favorable medical evidence, the Board finds service connection for bilateral peripheral neuropathy of the lower extremities is warranted. See 38 U.S.C. § 1154 (a); 38 C.F.R. §§ 3.102, 3.303.

 

Bethany L. Buck

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Tabitha Chapman, 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.