Citation Nr: A21020191 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 190820-28497 DATE: December 17, 2021 ORDER Entitlement to service connection for left foot peripheral neuropathy is granted. FINDING OF FACT The Veteran's left foot peripheral neuropathy onset in service. CONCLUSION OF LAW The criteria for service connection for left foot peripheral neuropathy are met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1968 to April 1971, to include service in the Republic of Vietnam. The Veteran's decorations include the Purple Heart, Bronze Star Medal with first oak leaf cluster and "V" device, Air Medal, and Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) from a March 2019 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In August 2019, the Veteran elected to appeal the March 2019 rating decision under the Appeals Modernization Act (AMA) by filing a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (AMA NOD) and selecting the Hearing docket. The Veteran testified before the undersigned Veterans Law Judge at a virtual AMA hearing in December 2021. The evidence available for review is the evidence of record at the time of the March 2019 rating decision; the evidence submitted at the December 2021 hearing, to include testimony provided at the hearing; and the evidence, if any, submitted within 90 days of the hearing. 38 C.F.R. § 20.302. Because the Board finds that the current evidence of record supports granting the claim, the Board issues this decision before the expiration of the 90-day evidence window. The Board notes that the issue on appeal is limited to peripheral neuropathy of the left foot, as that was the issue originally claimed and adjudicated by the AOJ. See March 2019 rating decision; November 2018 VA Form 21-526EZ. The evidence appears to indicate, however, that the Veteran's peripheral neuropathy may affect both lower extremities. See September 2021 VA treatment record (indicating the condition affects bilateral lower extremities); January 2019 VA treatment record (indicating left is worse than right); September 2014 private treatment record (indicating the Veteran reported bilateral foot dysesthesia). While the Board may only consider entitlement to benefits for the left lower extremity in this decision, the Veteran may work with his representative to file a claim on the proper VA form for service connection for peripheral neuropathy of the right lower extremity. The Veteran relates his left foot peripheral neuropathy to service, specifically to herbicide agent exposure during his service in the Republic of Vietnam. See December 2021 Board hearing transcript (Tr.); November 2018 VA Form 21-526EZ. He reports continuous problems with his left lower extremity since he was exposed to herbicide agents in Vietnam, thereby supporting a nexus to service. The Board agrees. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). In the case of a veteran who engaged in combat with the enemy during active service during a period of war, VA will accept lay evidence of in-service incurrence of a disease or injury, if the lay evidence of onset is consistent with the circumstances, conditions, or hardships of the veteran's service, notwithstanding the lack of documentation of this in-service incurrence. See 38 U.S.C. § 1154(b). Further, not only is the combat injury presumed, but also the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including peripheral neuropathy (categorized as an organic disease of the nervous system), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service or if demonstrated by continuity of symptomatology. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The first element of service connection, a current disability, is met as the Veteran has been diagnosed with left foot peripheral neuropathy. See September 2020 private medical opinion (submitted after the December 2021 Board hearing); January 2019 VA environmental agents exposure examination; September 2014 private neurology note. The second element of service connection, in-service incurrence, is met, as the Veteran is presumed to have been exposed to herbicide agents during his service in the Republic of Vietnam. See November 2021 VA Memo; May 2019 rating decision; DD Form 214. The Veteran also served in combat in the Republic of Vietnam; accordingly, his testimony as to an initial onset of left lower extremity symptoms (pain and numbness) in service is conceded as consistent with the circumstances of his combat service. See 38 U.S.C. § 1154(b); DD Form 214. The first two elements of service connection having been met, this case turns on a causal relationship between the current disability and in-service incurrence, otherwise known as a nexus. There is no negative nexus opinion of record. In contrast, a September 2020 private medical opinionuploaded to the claims file the day after the December 2021 Board hearingstates that there is "a 50% chance that his [early-onset peripheral neuropathy] is a result of exposure to [herbicide agents] in Vietnam." The clinician based this opinion on consulting with the physician who treated the Veteran's condition for six years and on her own examination and testing of the Veteran. The Board notes that the September 2020 medical opinion characterizes the Veteran's condition as early-onset peripheral neuropathy, which is presumed to be caused by herbicide agents. See 38 C.F.R. § 3.309(e). In addition, a January 2019 private medical opinion states that the Veteran's peripheral neuropathy is at least as likely as not due to herbicide agent exposure, although this opinion's probative value is diminished slightly due to the rationale's use of speculative language ("appears"). Any loss of probative value, however, is made up for by the Veteran's consistent reports. In this regard, the Veteran has consistently related the origins of his peripheral neuropathy to the time he served in the Republic of Vietnam. For example, a January 2019 VA treatment record states that the Veteran reported his peripheral neuropathy dates to 1971 and has progressively worsened since then. In his November 2018 VA Form 21-526EZ, he makes the same assertion. The Veteran also credibly testified to the same at the December 2021 Board hearing. This competent, credible, and probative evidence demonstrates continuity of symptomatology since service. 38 C.F.R. §§ 3.307, 3.309. Furthermore, the combat presumption attaches to the Veteran's reported in-service incurrence of peripheral neuropathy during a period in which he served in combat. See Reeves, supra. In sum, the evidence of record establishes that the Veteran has a diagnosis of peripheral neuropathy of the left foot. The evidence also shows that the Veteran served in combat in the Republic of Vietnam. The record contains favorable evidence of a nexus in the form of consistent and credible reports of continuous symptoms, positive nexus opinions that merit some probative weight, and the benefit afforded by the combat presumption. In addition, one medical opinion described the condition as early-onset peripheral neuropathy, which is presumptively linked to herbicide agent exposure. The record contains no negative evidence to rebut the evidence in favor of granting the claim. Accordingly, after affording the Veteran the benefit of the doubt, all elements of service connection are met for left foot peripheral neuropathy, and the benefit sought on appeal is granted. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.