Citation Nr: 21013481 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-46 562 DATE: March 9, 2021 ORDER Entitlement to service connection for bilateral peripheral neuropathy of the feet is granted. FINDING OF FACT The Veteran’s bilateral peripheral neuropathy of the feet is etiologically related to an in-service event or injury. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for bilateral peripheral neuropathy of the feet, have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty in the United States Air Force from June 1960 to March 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a timely notice of disagreement (NOD) in November 2015. In August 2017, the RO issued a Statement of the Case (SOC). The Veteran filed a timely VA Form 9 in September 2017 and requested a hearing before a Veterans Law Judge (VLJ). In October 2018, the Veteran attended a hearing before the undersigned VLJ. The Veteran’s claim was then remanded in February 2019 and again in December 2020. The Veteran was afforded a new VA examination and a supplemental statement of the case (SSOC) was issued in January 2021. This matter is now properly before the Board. SERVICE CONNECTION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). 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 also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. 1. Entitlement to service connection for bilateral peripheral neuropathy of the feet. The Veteran contends that he is entitled to service connection for bilateral peripheral neuropathy of the feet as a result of his Agent Orange exposure while in service. The Veteran contends that the symptoms of bilateral neuropathy began in service and continued thereafter. In October 2018, the Veteran testified in a hearing before the undersigned VLJ. The Veteran testified that he started having symptoms during service. He indicated that he felt the symptoms while standing and that it progressed over the years. He stated that he did have symptoms while in service and since service. He indicated the symptoms started as a light numbing sensation and that it was always apparently a problem. The Veteran also testified that he was exposed to Agent Orange, other pesticides and jet fuel while in service. In a May 2014 note within the Veteran’s medical records, the Veteran’s physician indicated that the Veteran had foot pain and numbness on the soles of his feet. The Veteran was referred to a podiatrist for a consultation. In November 2014, medical notes from the podiatry consult noted pain on all activities, and that the Veteran should follow up with neurology. The Veteran followed up again with the podiatry in February 2015 and was diagnosed with bilateral neuropathy of the feet. In an October 2018 VA examination, the VA examiner determined that the Veteran had been exposed to Agent Orange during his active duty service and that he developed intermittent burning and numbing pain since exposure. In a November 2019 VA examination, the examiner confirmed the Veteran’s current diagnosis of bilateral peripheral neuropathy. The examiner opined that the Veteran’s neuropathy is less likely than not related to herbicides, agent orange, jet fuel, burning documents or other chemical agents during his service. In a December 2020 VA examination, the examiner determined that upon a review of the medical record and current medical literature, herbicide exposure at least as likely as not led to the Veteran’s peripheral neuropathy. The examiner noted that the Veteran does not have any other diseases that would typically cause peripheral neuropathy such as diabetes mellitus, lupus, rheumatoid arthritis, hormonal disorders, or liver disorders. The examiner noted that herbicide exposure has been acknowledged and widely understood to be highly carcinogenic and one mechanism is through damage to DNA/chromosomal damage, leading to abnormal cell growth. The examiner also noted that chromosomal damage can lead to other diseases, including nerve damage, which can result in peripheral neuropathy. Over time the damage would be expected to accumulate, leading to the peripheral neuropathy symptoms, as currently reported by the Veteran. The examiner determined that the literature and studies were consistent with the history reported by the Veteran and the exam findings reported in the medical record. The evidence of record indicates that the Veteran was discharged from service in 1964 and was not diagnosed with bilateral peripheral neuropathy until several years later. Service connection may be granted on a presumptive basis for bilateral peripheral neuropathy of the feet due to Agent Orange exposure if the condition manifested to a compensable degree, severe enough to be evaluated at least 10 percent disabling, within one year of military discharge. See 38 C.F.R. § 3.307. While the medical evidence shows that bilateral peripheral neuropathy of the feet is due to Agent Orange exposure and is currently disabling to a compensable degree, the medical evidence fails to show that the disability became compensable within the time period specified under 38 C.F.R. § 3.307. Therefore, service connection on a presumptive cannot be established. However, in this case, while the Veteran is not entitled to service connection under the theory of presumptive service connection, the Board must evaluate the Veteran’s claim for bilateral peripheral neuropathy of the feet under a direct service-connection basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran does have a current diagnosis of bilateral peripheral neuropathy of the feet. The Veteran did serve on active duty in the military and did serve in Vietnam. The Board finds that the record shows that there has been consistent pain and problems in and since service. In October 2018, the Veteran testified before the undersigned VLJ that he has had symptoms in and since service. The December 2020 VA examiner also found an etiological connection between the Veteran’s in-service Agent Orange and herbicide exposure to be directly related to the Veteran’s disability. The Board finds the examiner’s opinion to be highly probative, credible and competent. The Board also finds the Veteran is competent to testify as to his own symptoms and pain felt in and since service. The Board finds the Veteran’s testimony to be credible and highly probative. The Board concludes that the evidence is at least in equipoise regarding the question of whether the Veteran’s current bilateral peripheral neuropathy of the feet is related to his active service. 38 C.F.R. § 3.303 (2019). As such, the benefit-of-the doubt will be conferred in the Veteran’s favor and the claim for service connection for bilateral peripheral neuropathy of the feet is granted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hellina Y. Hailu, 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.