Citation Nr: 21021343 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 18-05 922A DATE: April 12, 2021 ORDER Entitlement to service connection for a bilateral foot disorder, to include as due to herbicide exposure, is granted. FINDING OF FACT It is at least as likely as not that the Veteran’s neuropathy is related to service, or due to toxic herbicide exposure. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disorder are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1966 to November 1969. The Veteran was afforded a hearing via video conference before the undersigned Veterans’ Law Judge in March 2020. A transcript of that hearing is of record. The Board acknowledges that the Veteran’s precise disorder has been characterized in a number of ways during the course of this appeal, although it should be noted that this claim may properly encompass any disorder that caused the symptoms he has described. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Thus, bilateral foot disorder encompasses all potential disorders on appeal. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). Moreover, VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Service connection is warranted for the following diseases where a veteran has been exposed to toxic herbicide agents during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)): AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus, Hodgkin’s disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), and soft-tissue sarcomas. In fact, service connection is warranted even if these disorders were not shown during active duty. 38 C.F.R. § 3.309(e). 1. Entitlement to service connection for a bilateral foot disorder Here, the Veteran asserts that his bilateral foot disorder is related to active duty service, to include possibly related to toxic herbicide exposure. As an initial matter, the Board concedes toxic herbicide exposure, as the Veteran’s personnel records reflect that the served in the Republic of Vietnam. However, service connection is not warranted on a presumptive basis. To the extent, the Veteran’s bilateral foot disorder is characterized as peripheral neuropathy, the only disorder subject to presumption, it is no proof that his neuropathy was early onset, which is required for such to be presumptively related to toxic herbicides. The evidence suggests the first treatment for neuropathy was many years after service in approximately 2014. Moreover, his October 1969 separation examination did not note a neuropathy diagnosis. Therefore, service connection is not warranted on this basis. However, although service connection is not warranted on a presumptive basis, the Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). On this basis, the Board determines that service connection should be granted. Specifically, the evidence of record includes a private medical opinion in February 2020 that stated that his peripheral neuropathy had a probable relation to “toxin exposure.” This opinion was based on a full evaluation of the Veteran and his medical history. The Board acknowledges that a VA examiner from August 2020 opined that the Veteran’s neuropathy was less likely than not that the Veteran’s neuropathy was related to herbicide exposure. However, the examiner’s rationale was limited to the fact that the Veteran’s neuropathy did not develop within one year after exposure it is not for presumption. In the Board’s view, while the fact that the Veteran’s neuropathy failed to manifest within a year of exposure is a factor in granting service connection on a presumptive basis, it is not truly a legitimate factor when considering whether service connection is warranted on a direct basis. This VA examination is also problematic, as the incorrect Disability Benefits Questionnaire was used. Therefore, the Board will find that the evidence is at least in equipoise and, on this basis, service connection should be granted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, Associate Counsel