Citation Nr: 21075240 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-23 257 DATE: December 17, 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. Resolving reasonable doubt in favor of the Veteran, his peripheral neuropathy of the right lower extremity had its onset in service. 2. Resolving reasonable doubt in favor of the Veteran, his peripheral neuropathy of the left lower extremity had its onset in service. 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, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.302, 3.303. 2. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. § 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.302, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from January 1970 to December 1973. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the AOJ's determination, and the present appeal ensued. This claim has previously been before the Board. In September 2020 the Board denied the Veteran's claim. The September 2020 Board decision was appealed to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the Veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Remand (JMR). In a May 2021 Order, the Court endorsed the JMR, then vacated the Board's September 2020 decision and remanded the matter for readjudication in light of the JMR. As agreed by the parties in the Court-endorsed May 2021 JMR, the Board erred in the August 2019 denial of the Veteran's appeal by failing to discuss whether the Veteran's cancer treatment caused or aggravated his peripheral neuropathy. The Board remanded the claim to the AOJ in July 2021 for compliance with the May 2021 JMR. The Veteran's claim has been returned to the Board, although the Board notes that the July 2021 remand directives have not been complied with. However, due to the Board's favorable opinion, another remand is not necessary. SERVICE CONNECTION 1. Entitlement to service connection for peripheral neuropathy of the right lower extremity 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran and his representative assert that the Veteran's peripheral neuropathy began in service, in February 1970, and has continued since. According to private treatment records and a January 2016 disability benefits questionnaire (DBQ), the Veteran has been diagnosed with peripheral neuropathy of the bilateral lower extremities. Accordingly, the first element necessary to establish service connection has been demonstrated. Concerning the second element to establish service connection, the Board observes that the Veteran's service treatment record includes a note of leg numbness in February 1970. The Veteran has consistently stated that his leg numbness began in February 1970. A veteran or other lay person is competent to report that which he perceives through his symptoms, which in this case, would be bilateral leg numbness that progressively worsens over time. Layno v. Brown, 6 Vet. App. 465 (1994). The final element, evidence of a nexus between the claimed in-service disease or injury and current disability, has also been established with mixed evidence. The Board notes that the Veteran, through his representative, in a December 2021 statement reiterated that the Veteran contends his peripheral neuropathy began in service and does not rely on secondary service connection. The November 2019 examiner's unfavorable opinion focused on whether the Veteran's peripheral neuropathy is related to his in-service herbicide agent exposure. While the Board appreciates this medical opinion, the Veteran contends that his peripheral neuropathy is directly related to his February 1970 symptoms and not due to herbicide agent exposure. Additionally, while the November 2019 examiner acknowledged the Veteran's February 1970 complaint of numbness of his lower extremities, the examiner stated that the examiner cannot conclude the Veteran's peripheral neuropathy is related to the February 1970 symptoms, but did not provide reasoning for this unfavorable opinion. Therefore, the Board affords this medical opinion little probative value. The Veteran has provided a positive private medical opinion, dated November 2018, in which the Veteran's chiropractor indicated that the Veteran's bilateral neuropathy originated in February 1970. The Board finds that this medical explanation has at least some probative value. Therefore, based on the Veteran's statements of continuity of symptoms with respect to a disability of the nervous system and the November 2018 private medical opinion, the Board finds that the Veteran's peripheral neuropathy of the bilateral lower extremities, had its onset in service. 38 C.F.R. § 3.303; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, giving the Veteran the benefit of the doubt, the Board finds that service connection peripheral neuropathy of the bilateral lower extremities is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.