Citation Nr: 21013300 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 13-11 428 DATE: March 9, 2021 ORDER Entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to exposure to herbicides is granted. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to exposure to herbicides is granted. REMANDED Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to exposure to herbicides is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to exposure to herbicides is remanded. Entitlement to service connection for right vocal cord paralysis, to include as due to exposure to herbicides and/or peripheral neuropathy is remanded FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the Veteran’s right upper extremity peripheral neuropathy is at least as likely as not related to his service, to include exposure to herbicides therein. 2. Resolving reasonable doubt in favor of the Veteran, the Veteran’s right lower extremity peripheral neuropathy is at least as likely as not related to his service, to include exposure to herbicides therein. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for right upper extremity peripheral neuropathy, to include as due to exposure to herbicides have been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for establishing service connection for right lower extremity peripheral neuropathy, to include as due to exposure to herbicides have been met. 38 U.S.C. §§ 1110, 1112, 1116, 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 from March 1967 to December 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. These matters were previously remanded by the Board in September 2017 and January 2019 for further development. The Board notes that in a January 2019 decision, the Board, in pertinent part, denied service connection for right side suboccipital decompression and hypertension, to include as both due to herbicide exposure. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). By a September 2019 Order, the Court vacated the January 2019 Board decision to the extent that it denied service connection for right side suboccipital decompression and hypertension and remanded the claims to the Board for compliance with instructions pursuant to a September 2019 Joint Motion for Partial Remand (JMPR). Thereafter, in June 2020, the Board remanded the issues of entitlement to service connection for hypertension and right suboccipital decompression in order to comply with the September 2019 JMPR. A review of the record shows the RO has not yet completed the development specified in the Board’s June 2020 remand. As such, the issues have not been returned to the Board and will not be addressed herein but may be the subject of a future Board decision, if otherwise in order. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam from February 28, 1961 to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). A veteran may be entitled to a presumption of service connection based on exposure to herbicide agents during the Vietnam Era if he is diagnosed with certain enumerated diseases, to include early onset peripheral neuropathy. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the regulations governing presumptive service connection based on herbicide exposure, service connection may also be established with proof of actual direct causation. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 1. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to exposure to herbicides is granted. 2. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to exposure to herbicides is granted. As an initial matter, the Board notes that the record reflects that the Veteran has been diagnosed with right upper and lower extremity peripheral neuropathy, as shown by the December 2019 VA examination. Accordingly, the first element of service connection, a current disability, has been met. The Veteran contends that he developed peripheral neuropathy as a result of service, to include exposure to herbicide agents in the Republic of Vietnam. Exposure to herbicide agents has been conceded as the Veteran’s service personnel records show he served in Vietnam. Accordingly, the second element of service connection, an in-service injury, has been met. Thus, the remaining question becomes whether the Veteran’s peripheral neuropathy is related to service, to include herbicide exposure therein. On this question, there are medical opinions both in favor and against the claim for service connection. The Veteran’s service treatment records are silent as to any complaints of, treatment for or diagnosis of peripheral neuropathy. Indeed, the Veteran’s December 1970 separation examination did not any abnormalities upon neurologic examination. The Veteran underwent VA peripheral nerve examination in December 2017. At that time, the Veteran reported right arm and leg deficits were related to his spinal cord condition that he had surgery for in the 1990s. The examiner reported that the Veteran did not have a peripheral nerve condition or peripheral neuropathy. The examiner determined that a nexus opinion as to the etiology of the peripheral neuropathy was not warranted because there was no documentary, historical, or clinical evidence of a primary peripheral neuropathy condition of the bilateral upper and lower extremities for the Veteran. The examiner further explained that the right-sided symptoms the Veteran experienced were related to a central nervous system condition. However, the January 2019 Board remand found that the December 2017 VA examiner’s determination and opinion was inadequate because it did not address a conflicting diagnosis on an October 2017 VA treatment record showing unspecified idiopathic peripheral neuropathy on the Veteran’s active problem list. Thus, pursuant to the January 2019 Board remand, the Veteran underwent VA peripheral nerve examination in December 2019 and an opinion was obtained. Upon VA examination in December 2019, the examiner diagnosed unspecified idiopathic peripheral neuropathy of the right upper and lower extremity with an onset date of December 2016. The examiner opined that the condition was less than likely related to service, to include exposure to herbicides therein. The examiner explained that the right-sided peripheral neuropathy diagnosis was made based on physical examination of the Veteran at that time and the Veteran’s post-service treatment records, to include a December 2016 treatment record noting unspecified idiopathic peripheral neuropathy in the medical history and an August 2017 mental health visit summary listing unspecified idiopathic peripheral neuropathy under current active problems. The examiner explained that right upper and lower extremity peripheral neuropathy was not documented until more than 40 years after the Veteran’s separation from service and as such, a nexus was not established. In September 2020, the Veteran submitted a private case study analysis and medical opinion from Dr. P.B., DO, who reported reviewing all of the Veteran’s service records, VA treatment records and private treatment records, along with the Veteran’s testimony. Dr. P.B. stated that the Veteran reported that during service he was assigned to all kinds of work involving chemicals, solvents and diesel/gasoline fuels. Dr. P.B. stated that it is with almost certainty that the Veteran used chemicals like toluene, acetone, benzene, n-hexane, etc., and was exposed to diesel/gasoline fumes along with Agent Orange exposure. He stated that the Veteran reported that at times, he was dripping in solvents after cleaning around equipment and could barely breath after being around fumes all day in tight quarters aboard the ship. Often times, he was not given the opportunity to wash his hands before eating. Dr. P.B. stated that there are write-ups on the National Institute for Occupational Safety and Health website stating that the major carcinogen in gasoline (also kerosene or diesel) was benzene, which is a solvent derived from coal and known to cause a number of cancers. Benzene can enter the body through the lungs, gastrointestinal tract and across the skin. Benzene can cause blood disorder, organ disorder, dizziness, convulsions, heart problems, cancers, coma and death. Benzene was banned as an additive, but it was prevalent in the early 1970s. Dr. P.B. stated that it is not unreasonable to consider this probability and it may be the culprit, in his opinion. Benzene is responsible for peripheral neuropathy, insomnia and memory loss. Also, n-hexane is a probable cause. Dr. P.B. stated that for simplicity, chemicals and products are referred to as “chemicals” and in reality, products such as gasoline and chemicals such as chlordane are actually complex mixtures of dozens of individual chemical ingredients. Regarding peripheral neuropathy, Dr. P.B. stated that the Veteran continues to complain of having arm numbness, weakness, trembling, low back pain, and leg numbness, weakness and trembling. His symptoms have been present since he was in Vietnam. The Veteran related difficulty with balance and gait and that at times, he drags his right lower extremity. Dr. P.B. opined that it is at least as likely as not that the Veteran’s peripheral neuropathy is related to service, to include as a result of herbicide exposure therein. Dr. P.B. explained that the etiology is the initial injury which happened while the Veteran was on active duty service and results in neuropathy symptoms. Symptoms often develop insidiously and are characterized by muscle stiffness, pain, numbness and weakness of the limb(s), all of which the Veteran presents. He further reported that the Veteran is experiencing symptoms of neuropathy, which refers to malfunctions of the nerves outside of the brain and spinal cord. Paresthesia occurs due to chronic nerve damage. The most common cause of neuropathy is trauma, repetitive movement injuries, autoimmune diseases, such as rheumatoid arthritis, neurological disease, kidney diseases, liver disease, and exposure to toxic substances, such as chemicals or heavy metals. In this instance, Dr. P.B. explained that there is no other explanation other than etiological origin as exposure to chemicals/solvents/fuels, Agent Orange exposure and/or repetitive action injury which the Veteran’s duties required. Dr. P.B. further stated that this is plausible and reasonable and at the very least, equipoise has been created. Upon review of the record, the Board finds that there are competent and probative medical opinions both in favor and against the claims for service. In such instance, the law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107. The Board finds that in this case the evidence reaches the level of equipoise as to whether the Veteran’s right upper and lower extremity peripheral neuropathy is related to service, to include exposure to herbicides therein. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for right upper and lower extremity peripheral neuropathy is warranted. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner’.... [I]f... the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”). REASONS FOR REMAND 1. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to exposure to herbicides is remanded. 2. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to exposure to herbicides is remanded. Pursuant to the January 2019 Board remand, the Board instructed that the Veteran undergo VA peripheral nerve examination and the examiner was to determine if the Veteran has a diagnosis of peripheral neuropathy of the bilateral upper and lower extremities. If the examiner found there was no diagnosis, the examiner was instructed to address the treatment records, specifically the October 2017 VA treatment record, that show a diagnosis of unspecified idiopathic peripheral neuropathy, and how he/she came to the conclusion that there is no diagnosis of peripheral neuropathy. Upon VA peripheral nerve examination in December 2019, the examiner determined that the Veteran did not have a diagnosis of left upper and/or lower extremity peripheral neuropathy. The examiner remarked that there was no objective evidence to support the Veteran’s claim of left upper and lower extremity peripheral neuropathy on the day of examination; therefore, no diagnosis of the left side is warranted. However, the examiner did not address the treatment records, specifically the October 2017 VA treatment record, that show a diagnosis of unspecified idiopathic peripheral neuropathy, and how he/she came to the conclusion that there is no diagnosis of peripheral neuropathy in determining there was no diagnosis of left upper and lower extremity peripheral neuropathy, as instructed by the January 2019 Board remand directives. Therefore, remand is required to ensure substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to service connection for right vocal cord paralysis, to include as due to exposure to herbicides and/or peripheral neuropathy is remanded. Pursuant to the January 2019 Board remand, an opinion addressing whether the Veteran’s right vocal cord paralysis was caused or aggravated by his peripheral neuropathy was obtained in December 2019. The examiner failed to provide an opinion addressing whether the Veteran’s right vocal cord paralysis was caused by his peripheral neuropathy and although the examiner opined that the right vocal cord paralysis was less than likely aggravated by any peripheral neuropathy, the rationale provided described how right vocal cord paralysis was not related to service, to include herbicide exposure. The Board finds the opinion provided by the December 2019 VA examiner is insufficient as it fails to comply with the Board’s January 2019 remand directives. As such, remand for an addendum medical opinion addressing secondary service connection is required to ensure substantial compliance. See Stegall, 11 Vet. App. at 271. Updated treatment records should also be obtained upon remand. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran and his representative should be notified of such. 2. After records development is completed, send the Veteran’s claims file to the December 2019 VA peripheral nerve examiner, if available, to determine the nature of any left-sided peripheral neuropathy. If a new examination is required in order to respond to the request, such should be scheduled. Following review of the claims file, the examiner should: (a.) Determine if the Veteran has a diagnosis of left upper and/or lower extremity peripheral neuropathy. If it is found that there is no current left-sided peripheral neuropathy diagnosis, the examiner MUST address the treatment records, to include the October 2017 VA treatment record showing a diagnosis of unspecified idiopathic peripheral neuropathy and the September 2020 private opinion by Dr. P.B., referencing symptomology of left-sided peripheral neuropathy experienced by the Veteran, and how the examiner came to the conclusion that there is no diagnosis of left upper and/or lower extremity peripheral neuropathy. (b.) If, and only if, the examiner determines that the Veteran has left upper and/or lower extremity peripheral neuropathy, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current left upper and/or lower extremity peripheral neuropathy arose during service or is otherwise related to service, to include exposure to herbicides therein. Please explain why or why not, to include addressing the significance, if any, of the treatment records documenting peripheral neuropathy, the September 2020 positive private opinion from Dr. P.B., along with the Veteran’s lay assertions. 3. Send the Veteran’s claims file to the December 2019 VA sinusitis/rhinitis and other conditions examiner, if available, to provide an opinion as to the etiology of the Veteran’s right vocal cord paralysis. If a new examination is required in order to respond to the request, such should be scheduled. Following review of the claims file, the examiner should provide an opinion as to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the current right vocal cord paralysis was caused by the service-connected peripheral neuropathy? Please explain why or why not, to include addressing the September 2020 private positive opinion from Dr. P.B. (b.) If not caused by the service-connected peripheral neuropathy, is it at least as likely as not that the Veteran’s right vocal cord paralysis was worsened beyond natural progression (aggravated) by his service-connected peripheral neuropathy? Please explain why or why not, to include addressing the September 2020 private positive opinion from Dr. P.B. (Continued on the next page)   A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that the right vocal cord paralysis was aggravated beyond the normal progression due to the service-connected peripheral neuropathy does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Medina, 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.