Citation Nr: 21076293
Decision Date: 12/23/21	Archive Date: 12/23/21

DOCKET NO. 15-38 091
DATE: December 23, 2021

ORDER

Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities (hands), to include as due to herbicide exposure, is granted.

Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities (feet), to include as due to herbicide exposure, is granted.

FINDINGS OF FACT

1. Resolving reasonable doubt in the Veteran's favor, his peripheral neuropathy of the bilateral upper extremities (hands) is at least as likely as not related to his active duty service.

2. Resolving reasonable doubt in the Veteran's favor, his peripheral neuropathy of the bilateral lower extremities (feet) is at least as likely as not related to his active duty service.

CONCLUSIONS OF LAW

1. The criteria for service connection for peripheral neuropathy of the bilateral upper extremities (hands) are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for peripheral neuropathy of the bilateral lower extremities (feet) are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the United States Marine Corps from August 1965 to August 1969, including service in the Republic of Vietnam.

These matters were previously before the Board of Veterans' Appeals (Board) in September 2018, at which time they were remanded for further development. 

Service Connection

Generally, 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).

Service connection may also be granted for specific diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, despite any lack of evidence of such disease during service provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcoma.

A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam (Vietnam) during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i).

1. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities (hands), to include as due to herbicide exposure

2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities (feet), to include as due to herbicide exposure

The Veteran claims that he has peripheral neuropathy of the hands and feet as the result of exposure to Agent Orange in the Republic of Vietnam. A current diagnosis is conceded, as is herbicide exposure. Thus, the question becomes whether the current disabilities are related to the Veteran's service. For the reasons explained below, the Board concludes that the Veteran's peripheral neuropathy of the bilateral upper and lower extremities are related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

The Veteran's claims were originally denied on the basis that his peripheral neuropathy was not manifest to a compensable degree within one year after the last date on which he was exposed to an herbicide agent in Vietnam, and therefore, he failed to qualify for the presumption of service connection. See 38 C.F.R. §§ 3.307, 3.309.

However, notwithstanding the presumption, a claimant can establish service connection for disability due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App.40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). Indeed, the private treatment records indicate that Agent Orange exposure is a risk factor for peripheral neuropathy. See February 2013 electrodiagnostic study report.

Therefore, pursuant to the September 2018 Board remand, the Veteran was afforded a VA examination in September 2019. The examiner opined that the Veteran's peripheral neuropathy of the hands and feet was at least as likely as not (50 percent or greater probability) incurred in or caused by service. She stated that the Veteran's records were reviewed, and a thorough history and physical examination performed. She noted that the Veteran has been diagnosed with bilateral upper and lower extremity peripheral neuropathy and in-service herbicide exposure has been conceded. She stated that the medical literature indicates peripheral neuropathy is    a relatively common sequela of these exposures, and thus, it is as likely as not that the Veteran's peripheral neuropathy are due to his in-service exposures.

The Board finds this opinion to be adequate and probative to the question at hand. She possessed the necessary education, training, and expertise to provide the opinion. In addition, she provided a rationale for the opinion, which was based on medical literature, an examination and interview of the Veteran, and review of the record including lay and medical evidence. 

The Board acknowledges that the Regional Office (RO) confirmed and continued the denial of the claims in an April 2020 Supplemental Statement of the Case (SSOC) based on the amount of time that passed between the Veteran's herbicide exposure and diagnosis of peripheral neuropathy and the failure to fall within the requisite time period to establish presumptive service connection. However, the Board finds that the September 2019 positive nexus opinion is sufficient to establish service connection on a direct basis. There is no other medical opinion of record to the contrary.

Therefore, upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's peripheral neuropathy of the bilateral upper and lower extremities is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for peripheral neuropathy of the bilateral upper extremities (hands) and peripheral neuropathy of the bilateral lower extremities (feet) is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

 

 

M. C. WILSON

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. Sneeringer, 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.