Citation Nr: 21010482 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-40 050 DATE: February 25, 2021 ORDER Service connection for bilateral lower extremity peripheral neuropathy, to include as due to exposure to herbicide agents (Agent Orange), is granted. REMANDED For the increased rating period on appeal prior to July 31, 2015, entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s peripheral neuropathy affecting his lower extremities is related to service, to include exposure to herbicide agents (Agent Orange). CONCLUSION OF LAW The criteria to establish service connection for bilateral lower extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1965 to September 1968 with service in the Republic of Vietnam. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from rating decisions dated in October 2014 and October 2015 of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board remanded the Veteran’s claim for service connection for peripheral neuropathy. At that time, the Board also remanded the claim for entitlement to a disability rating in excess of 50 percent for PTSD. Thereafter, a September 2019 rating decision granted a 100 percent (maximum schedular rating) for PTSD effective July 31, 2015. This action was noted by the RO as granting the benefits sough on appeal. The Board notes, however, that the Veteran filed a claim for an increased rating on November 18, 2013. An October 2014 rating decision increased the Veteran’s PTSD disability rating to 50 percent effective November 18, 2013. Thereafter, and within one year of the October 2014 rating decision, new VA treatment records dated in 2015 (and relevant to the PTSD claim on appeal) were associated with the claims file. The Board finds that because new and material evidence was received within one year of the October 2014 rating decision, that rating decision did not become final, and the period on appeal is one year prior to receipt of the claim on November 18, 2013 (if an increase is demonstrated therein), through July 30, 2015 (the day preceding the grant of a maximum 100 percent rating for PTSD). See 38 C.F.R. § 3.400 (o)(2) (2020). Service Connection for Peripheral Neuropathy—Laws and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2020) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). The enumerated diseases include early-onset peripheral neuropathy. In order for the presumptive provision to apply for early-onset peripheral neuropathy, disease must manifest to a compensable degree within one year after the last date on which a veteran was exposed to an herbicide agent during active service. See 38 C.F.R. § 3.307 (a)(6)(ii). Service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide agent exposure. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). See also Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the 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. The Veteran in this case has been diagnosed with peripheral neuropathy of the lower extremities. See September 2014 electrodiagnostic report from Dr. Bettendorf (confirming a diagnosis of “severe, generalized polyneuropathy that affects lower limbs”). The Veteran asserts that his peripheral neuropathy of the lower extremities is related to his active service; namely, to his exposure to Agent Orange while he served in the Republic of Vietnam during the Vietnam era. In light of his service in the Republic of Vietnam during the Vietnam era, the Board finds that he is entitled to the presumption of exposure to herbicide agents. 38 C.F.R. § 3.307 (a)(6)(iii). Upon review of the record, the Board find that the evidence of record is at least in equipoise as to the question of whether peripheral neuropathy of the lower extremities etiologically related to exposure to herbicide agents during service, that is, was incurred in or caused by service. In support of the claim, the Veteran submitted a January 2021 medical opinion from Dr. Carey. At that time, Dr. Carey indicated that he had reviewed the relevant medical records in the claims file. Dr. Carey thoroughly discussed the Veteran’s medical history regarding the onset of his neuropathy symptoms and treatment obtained since service separation. These post-service records included various explanations for the Veteran’s lower extremity symptoms, including diagnoses of lumbar spine disorders, gout, sciatica, and peripheral neuropathy. Dr. Carey also referenced private treatment records from Dr. Chapman, which indicated that the Veteran’s bilateral leg and foot numbness “may be secondary to Agent Orange exposure during Vietnam rather than spinal nerve compression.” Moreover, Dr. Carey noted that a VA treatment record in February 2017 indicated that neuropathy “could be result of chemical exposure.” Dr. Carey’s report also referenced and discussed relevant medical literature pertaining to Agent Orange and its relationship to the development of peripheral neuropathy. In sum, and after review of the medical evidence of record and the pertinent medical literature, Dr. Carey opined that the Veteran’s polyneuropathy was as likely as not related to his in-service exposure to Agent Orange. This opinion was based on the Veteran’s lack of other identifiable risk factors and the scientific evidence linking 2,3,7,8-Tetrachlorodibenzo-p-dioxin (TCDD) exposure to the eventual development of long-term neuropathic symptoms. The Board finds the opinion from Dr. Carey to be highly probative as to whether the Veteran’s neuropathy is related to his in-service exposure to Agent Orange. Dr. Carey thoroughly reviewed the medical evidence of record, discussed relevant medical literature in detail, and provided an opinion supported by a well-reasoned rationale. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is the reasoning for the conclusion that contributes probative value to a medical opinion). The Board has reviewed the remaining evidence of record, and finds that there are no other medical opinions that are contradictory to Dr. Carey’s findings. Notably, a June 2019 VA examination report diagnosed the Veteran with lumbar radiculopathy and indicated that this disorder was secondary to a nonservice-connected spine disability, which was related to repeated parachute jumps in service. The examiner did not address the etiology of the Veteran’s diagnosed peripheral neuropathy. Accordingly, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for bilateral lower extremity peripheral neuropathy is warranted. 38 C.F.R. § 3.102. REASONS FOR REMAND As discussed above, the Veteran filed a claim for an increased rating for his PTSD disability on November 18, 2013. An October 2014 rating decision awarded a 50 percent rating for PTSD effective November 18, 2013. Thereafter, and within one year of the October 2014 rating decision, new VA treatment records dated in 2015 were associated with the claims file. Because new and material evidence was received within one year of the October 2014 rating decision, that rating decision did not become final, and the period on appeal is one year prior to receipt of the claim on November 18, 2013 (if an increase is demonstrated therein), through July 30, 2015 (the day preceding the grant of a maximum 100 percent rating for PTSD). See 38 C.F.R. § 3.400 (o)(2). Following the September 2019 rating decision, which awarded a 100 percent rating for PTSD effective July 31, 2015, the AOJ issues a Supplemental Statement of the Case (SSOC); however, the PTSD rating issues was not addressed. The AOJ improperly found that the Veteran’s PTSD claim had been granted in full. As noted above, additional consideration must be afforded to the Veteran regarding whether a rating in excess of 50 percent for PTSD is warranted for the increased rating period prior to July 31, 2015. A remand for a SSOC addressing this issue is required. The matter is REMANDED for the following actions: Adjudicate in an SSOC the claim for entitlement to a rating in excess of 50 percent for PTSD for the increased rating period on appeal prior to July 31, 2015. NOTE: The Board has found that new and material evidence was received within one year of the October 2014 rating decision; as such, that rating decision did not become final. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.