Citation Nr: 21022079 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-59 693 DATE: April 14, 2021 ORDER Entitlement to service connection for peripheral neuropathy, as caused by a service-connected liver disability, is granted. FINDING OF FACT Affording him the benefit of the doubt, the Veteran’s peripheral neuropathy is caused by his service-connected liver disability. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy as secondary to a liver disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1970 until his honorable discharge in June 1973. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2019, the Veteran testified before the undersigned at a hearing via videoconference. A transcript of his testimony has been associated with the claims file. In November 2019, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain a new VA examination. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection may be granted 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(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service – the so-called “nexus” requirement. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). Furthermore, in deciding 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 (2014); 38 C.F.R. § 3.102 (2018); 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 of the matter, the benefit of the doubt will be given to the Veteran. Id. Entitlement to service connection for peripheral neuropathy, to include as due to herbicide agent exposure or secondary to a liver disability. The Veteran asserts that he was exposed to herbicide agents (Agent Orange) while serving in the Korean Demilitarized Zone (DMZ) when the armored personnel carrier he was driving sank in a pond of runoff water. He asserts that he has had leg pain since service. The most recent VA examination in January 2021 diagnosed the Veteran with bilateral peripheral neuropathy of the lower extremities. The VA treatment records also support a diagnosis of peripheral neuropathy originating in June 2015 after an EMG test was conducted, which the Veteran stated he had never had in the past. His condition was described as “painful sensory neuropathy in the setting of chronic liver disease.” See March 2016 VA Treatment Records. The Veteran asked treatment providers if acupuncture would help relieve his neuropathy; they responded in the negative because his neuropathy was characterized as “neuropathy [associated with] cirrhosis.” See August 2020 VA Treatment Records. As a result, the first element of service connection has been met. Secondary service connection, under 38 C.F.R. § 3.310 may be established for a nonservice-connected disability which is caused by or aggravated by a service-connected disability. “Aggravation” in the context of secondary service connection is demonstrated when there is “[a]ny 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.” 38 C.F.R. § 3.310(b) (emphasis added). The January 2021 VA examiner provided a positive secondary service-connection nexus statement. He stated, in relevant part, “‘Analysis of electrophysiological study results of subjects with cirrhosis of liver shows that the [peripheral neuropathy] was frequent complication in all etiology and all grades of severity of cirrhosis of liver.’ Research shows that the peripheral neuropathy could have been aggravated further by the cirrhosis of the liver as noted above.” See January 2021 VA Examination. The original exam had a negative nexus opinion that was updated to a positive nexus with the same rationale. Here, the VA examiner stated that the Veteran was diagnosed with peripheral neuropathy in 2015 and with cirrhosis of the liver in 2007. See January 2021 and February 2020 VA Examinations. However, the January 2021 examiner noted that the Veteran reported having symptoms of peripheral neuropathy since service. The examiner also stated that they could not state whether the cirrhosis caused the peripheral neuropathy because of the Veteran’s statements that he has had the neuropathy since service. If the neuropathy came before the cirrhosis, then the cirrhosis could not cause the neuropathy. However, this timeline is not certain. The examiner stated, “Although the veteran does have a diagnosis of peripheral neuropathy and of cirrhosis of the liver, I am unable to prove which happened first. The [Veteran] states he has had issues with his feet for as long as he can remember. If that is the case, and the cirrhosis came after the fact, then in this case cirrhosis could not have caused the neuropathy.” See January 2021 VA Examination. The Veteran is competent to explain his symptoms, but not to diagnosis himself with a disability. He can state that he had leg pain but cannot attribute it to the specific disability that may be causing it. He is first diagnosed with peripheral neuropathy in June 2015 and stated that he had never had the EMG test for peripheral neuropathy in the past. There are no references to peripheral neuropathy in his VA treatment records prior to 2015. The benefit of the doubt weighs in the Veteran’s favor that his cirrhosis occurred before and caused his peripheral neuropathy. The positive opinion weighs in favor of service connection. See June 2016 VA Treatment Records. There is no need for the Board to address alternative theories of entitlement. As a result, the Board awards the Veteran service connection for peripheral neuropathy secondary to a liver disability. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Johnston, 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.