Citation Nr: 21013383 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 19-12 354 DATE: March 9, 2021 ORDER Service connection for peripheral neuropathy of the right lower extremity (RLE) is granted. Service connection for peripheral neuropathy of the left lower extremity (LLE) is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his RLE peripheral neuropathy is at least as likely as not related to in-service herbicide agent exposure. 2. Resolving reasonable doubt in the Veteran’s favor, his LLE peripheral neuropathy is at least as likely as not related to in-service herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for RLE peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for LLE peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to July 1994 with service in the Republic of Vietnam. His exposure to herbicide agents is presumed. 38 U.S.C. § 1116A; 38 C.F.R. § 3.307(a)(6)(iii). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019 and October 2020, the Board remanded these matters. The Board finds that there has been substantial compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271(1998). This appeal has been advanced on the Board's docket pursuant to 38C.F.R. §20.900(c). 1. Service connection for RLE peripheral neuropathy. 2. Service connection for LLE peripheral neuropathy. Issues 1&2. The Veteran contends, in part, that he developed peripheral neuropathy of his bilateral lower extremities due to herbicide agent exposure from his active duty in the Republic of Vietnam. The Veteran has asserted that his symptoms began during service upon his return from Vietnam. He stated that his initial symptoms of intermittent “cold feet” progressively worsened over time and he later developed tingling and numbness in his feet. While he believed he possibly had Raynaud’s syndrome, he was not formally diagnosed or treated by a doctor so he self-treated his symptoms. He further explained that not until years after he had retired from service, the symptoms of numbness, tingling, cold and sensitive skin became constant and he was finally diagnosed in 2017 with idiopathic peripheral neuropathy which he attributed to Agent Orange exposure. See (NOD) (August 2018); (VA Form 9) (April 2019); (Veteran’s Correspondence) (January 2021). Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). The Board concludes that, resolving reasonable doubt in the Veteran’s favor, his bilateral lower extremity peripheral neuropathy is at least as likely as not related to his in-service herbicide agent exposure. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. First, the Veteran’s exposure to herbicide agents has been established based on his service in the Republic of Vietnam during the Vietnam Era. 38 U.S.C. § 1116A; 38 C.F.R. § 3.307(a)(6)(iii). Second, the Veteran has established diagnoses for peripheral neuropathy of the RLE and LLE. Indeed, non-VA treatment records dated in March and April 2017 reflect diagnoses for peripheral neuropathy. See Medical Treatment Record – Government Facility (April 2017). The Veteran reported symptoms of numbness and tingling in both legs that started in his feet one year prior and spread up his legs over the past 6 months. He also described symptoms of burning and stabbing pains and hypersensitivity in his feet as if he were always wearing socks. The Veteran stated he was previously told he may have Raynaud’s syndrome, but no testing or treatment had been performed. See Medical Treatment Record-Government Facility) (March 2017). Third, although not shown in service or within one year after service, peripheral neuropathy of the Veteran’s lower extremities has been linked to his in-service herbicide agent exposure by competent, credible evidence. It is noted that early onset peripheral neuropathy is among the diseases enumerated in the list of diseases associated with herbicide agent exposure. 38 C.F.R. § 3.309(e). Although the Veteran is not shown to have early onset peripheral neuropathy, this does not preclude him from establishing service connection on a direct basis, that is, with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In April 2017, the Veteran underwent an electromyographic nerve test (EMG) to confirm peripheral neuropathy. The study showed electrophysiologic evidence of sensorimotor peripheral neuropathy of both lower limbs with primary axonal features. The staff physician, Dr. Apides, indicated that based on extensive laboratory tests (neurological and blood) and a family and medical history that were unremarkable, there was no clear explanation or identifiable cause for the Veteran’s axonal sensorimotor peripheral neuropathy. Consequently, the findings were determined to represent a likely idiopathic type of axonal polyneuropathy. See EMG report (Neuroscience Department, Electrodiagnostic Laboratory, Naval Medical Center San Diego) (April 2017). An August 2018 private medical opinion by Dr. Apides reflects that the Veteran’s lower extremity peripheral neuropathy, idiopathic, is as likely as not due to his herbicide agent exposure, explaining that an extensive work-up of the Veteran revealed no other identifiable medical etiology, coupled with his clinical history (e.g. long standing onset of his symptoms since the early 1970s). Similarly, a December 2019 VA medical opinion (VAMO) concluded that the Veteran’s bilateral lower extremity peripheral neuropathy is at least as likely as not related to his in-service exposure to herbicide agents. The VAMO explained that the axonal type of peripheral neuropathy exhibited by the Veteran is usually related to either diabetes mellitus o, toxin exposure. The VAMO essentially concurred with the August 2018 private medical opinion. The Board notes the record contains no conflicting medical opinion on this etiological question of direct causation of the Veteran’s disability from his in-service herbicide exposure. Given that the competent, credible medical evidence of record reflects that it is as likely as not that the Veteran’s RLE and LLE peripheral neuropathy is due to his herbicide agent exposure in service, the benefit doubt is afforded to the Veteran. Hence, service connection is warranted on the basis of direct causation resolving all doubt in favor of the Veteran. The Board notes that, although Dr. Apides did not provide a detailed rationale for his positive nexus opinion, he nonetheless concluded, based on physical examination of the Veteran, laboratory findings and EMG testing, as well as consideration of the Veteran’s medical and family history, that his right and left lower extremity peripheral neuropathy is related to exposure to herbicides. The medical opinion is therefore entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Lastly, the Board finds the medical opinion rendered by the VA examiner in December 2019 is highly probative in relating the Veteran’s peripheral neuropathy to his in-service herbicide exposure. In formulating a positive nexus opinion, the examiner incorporated the April 2017 EMG report and proceeded to clarify that the Veteran’s peripheral neuropathy is axonal in nature; indicated that axonal neuropathy is usually caused by exposure to toxins or diabetes; considered the Veteran has not been diagnosed with diabetes but has been exposed to toxins from herbicide agents during service; and finally, ruled out other possible causes by noting that Dr. Apides found no identifiable cause for the Veteran’s peripheral neuropathy of the bilateral lower extremities. Hence, the examiner provided clear conclusions with supporting data and a well-reasoned rationale based on medical and scientific principles that connected the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In sum, resolving reasonable doubt in the Veteran’s favor, his RLE and LLE peripheral neuropathy is at least as likely as not related to in-service herbicide agent exposure. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claims are granted. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Krunic, 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.