Citation Nr: 21076529 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 15-25 810 DATE: December 27, 2021 ORDER Entitlement to service connection for bilateral lower extremity peripheral neuropathy is granted. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is granted. REMANDED Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's currently-diagnosed bilateral lower extremity peripheral neuropathy is as likely as not the result of his presumed exposure to herbicides during his service while in Vietnam. 2. The Veteran's currently-diagnosed bilateral upper extremity peripheral neuropathy is as likely as not the result of his presumed exposure to herbicides during his service while in Vietnam. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in his favor, the criteria for entitlement to service connection for peripheral neuropathy of the lower extremities are met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. Resolving all reasonable doubt in his favor, the criteria for entitlement to service connection for peripheral neuropathy of the upper extremities are met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1966 to October 1969. This appeal comes to the Board of Veterans' Appeals (Board) from October 2014 and May 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In a January 2020 Board decision, in pertinent part, the Board denied entitlement to peripheral neuropathy of the bilateral upper extremities. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a Court order dated August 2020, pursuant to an August 2020 Joint Motion for Partial Remand (JMPR), the Court, in part, vacated the January 2020 Board decision and remanded back to the Board the issue of entitlement to peripheral neuropathy of the bilateral upper extremities. In the JMPR, the parties agreed that it is unclear how the Board concluded, without obtaining a medical opinion, that the Veteran's bilateral upper extremity peripheral neuropathy is not etiologically related to his in-service exposure to Agent Orange. Thus, the parties agreed that remand is warranted to obtain a VA examination that addresses whether the Veteran's bilateral upper extremity peripheral neuropathy is related to service, to include his exposure to Agent Orange. The claims for entitlement to entitlement to peripheral neuropathy of the bilateral lower and upper extremities are now returned before the Board. Service Connection 1. & 2. The claims for entitlement to service connection for bilateral lower and upper extremity peripheral neuropathy are granted. The Veteran attributes his bilateral lower and upper extremity peripheral neuropathy to his many years of military service, especially to his time in Vietnam. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or a disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 or "nexus" between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (2009). VA laws and regulations provide that, if a Veteran was exposed to Agent Orange or other herbicide during his service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, so during the Vietnam era, is presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). At the outset, the Board notes that the Veteran's DD Form 214 reflects that he had active service in Vietnam during the applicable period; therefore, as an initial matter, he is entitled to the presumption of herbicide exposure. Consequently, the determinative question for the Board in deciding this appeal is whether his currently-diagnosed bilateral upper and lower extremity peripheral neuropathy are related to or the result of his service specifically, his presumed exposure to herbicides in Vietnam. While early-onset peripheral neuropathy is among the diseases entitled to a presumption of service connection under 38 C.F.R. § 3.309(e), there is no indication from the record that the Veteran's bilateral upper or lower peripheral neuropathy is considered "early onset." Nonetheless, the Board finds persuasive an October 2021 private medical opinion, in which Dr. P.C. opined that the Veteran's diagnoses of bilateral upper and lower peripheral neuropathy are at least as likely as not related to his in-service exposure to Agent Orange. This opinion was made with consideration of all the relevant evidence of record, including lay statements, and supported by an explanatory rationale. Therefore, the Board finds this opinion entitled to probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, upon review of the record, the Board finds the evidence to be at least in relative equipoise, if not even more favorable to the claims, as to whether the Veteran's current bilateral upper and lower peripheral neuropathy are attributable to his service. The Board therefore concludes that he has this current disability from his exposure to herbicides during his service and, consequently, that service connection is warranted. REASONS FOR REMAND 1. Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. The Board notes that the Veteran had filed a Form 9 Substantive Appeal for the TDIU claim. See October 2019 Form 9; see also November 2021 Appellate Brief. Although additional delay is regrettable, a remand is required for the TDIU claim for development in light of the Board's grant of service connection for bilateral upper and lower extremity peripheral neuropathy herein. See also Appellate Brief. The matters are REMANDED for the following action: 1. The RO should specifically develop the Veteran's claim for entitlement to TDIU, to now also include the now service-connected bilateral upper and lower extremity peripheral neuropathy and adjudicate this claim. 2. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Cho, 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.