Citation Nr: 21022393 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 19-35 249 DATE: April 15, 2021 ORDER Entitlement to idiopathic peripheral neuropathy of the left lower extremity is granted. Entitlement to idiopathic peripheral neuropathy of the right lower extremity is granted. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, idiopathic peripheral neuropathy of the left lower extremity is related to his exposure to Agent Orange in Vietnam. 2. Resolving reasonable doubt in the Veteran’s favor, idiopathic peripheral neuropathy of the right lower extremity is related to his exposure to Agent Orange in Vietnam. CONCLUSIONS OF LAW 1. The criteria for entitlement to idiopathic peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to idiopathic peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1963 to December 1965. 1. Entitlement to idiopathic peripheral neuropathy of the left lower extremity. 2. Entitlement to idiopathic peripheral neuropathy of the right lower extremity. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). In order to prevail in a claim for service connection there must be medical evidence of a current disability as established by a medical diagnosis; of incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and of a nexus between the in-service injury or disease and the current disability established by medical evidence. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Service connection can also be established under presumptive provisions; in particular, presumption applies to disease(s) associated with exposure to certain herbicide agents. Under 38 C.F.R. § 3.307(a)(6), a veteran who, during active military, naval or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6), (d). In other words, if a veteran was exposed to an herbicide agent during active service, then, any disease that he has incurred, if found under 38 C.F.R. § 3.309(e), shall be service connected, even though there is no record of such disease during service. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran contends that his peripheral neuropathy was incurred in service and was the result of herbicide exposure in Vietnam. The Veteran’s service records show that he served in the Vietnam from August 1965 to December 1965. Therefore, the Veteran has the requisite type of service in the Republic of Vietnam as defined by 38 C.F.R. § 3.313(a) and § 3.307(a)(6)(iii), and the presumption of exposure to herbicides agents under 38 C.F.R. § 3.307 applies. However, the Board notes that presumptive service connection is only warranted for “Early-onset peripheral neuropathy.” The Veteran’s service treatment records are silent for complaints or symptoms related to peripheral neuropathy. In October 2018, the Veteran underwent a VA examination for his peripheral neuropathy condition. While the examiner reported his symptoms, range of motion, and flexion, no opinion as to the etiology of his peripheral neuropathy were rendered. The Veteran submitted a private medical opinion and an addendum opinion, from his physician, Dr. R.K.H. and Dr. B.P., establishing a nexus between the Veteran’s peripheral neuropathy of the bilateral lower extremities and his service. The physician opined that “due to known exposure in Agent Orange during the period of time that he served in Southeast Asia, [herbicides] appears to have been the causative toxic exposure to have caused his significant neuropathy.” Additionally, Dr. R.K.H. discussed the causes of peripheral neuropathy and ruled out the known causes, as the Veteran does not have any of the diseases/deficiencies listed. Recent testing was performed and did not show any significant abnormalities, which Dr. B.P. opined that it suggests “his neuropathy symptoms may have been caused by exposure to Agent Orange when he was in Vietnam.” See December 2018 and January 2020 Private Medical Opinions. As noted above, the Veteran served on the ground in Vietnam and is presumed to have been exposed to herbicide agents. The Veteran’s private treatment records show that the he has a current diagnosis of peripheral neuropathy. Additionally, the Veteran’s private neurologist has opined that herbicide exposure is the most likely cause of the Veteran’s specific condition and this neurologist ruled out other causative factors. The Veteran’s claims file does not contain any medical opinions to the contrary. The fact that peripheral neuropathy is not on the presumptive list is an insufficient reason to deny the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other non-presumptive conditions based on exposure to Agent Orange). The United States Court of Appeals for Veterans Claims (CAVC) has observed that the benefit of the doubt rule does not require that a medical principle to have reached the level of scientific consensus to support a claim for veterans’ benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt standard reflects the nation’s recognition of debt to our veterans and has assumed the risk of error in awarding benefits to the veteran). Here, while the Veteran’s type of neuropathy has not been deemed to be presumptively due to herbicide exposure, the Veteran has presented competent medical opinion which raises reasonable doubt as to whether this Veteran’s peripheral neuropathy is causally related to herbicide exposure. As such, the criteria for entitlement to service connection for peripheral neuropathy have been met. 38 U.S.C. § 5107(b); Wise, 26 Vet. App. at 531; Combee, 34 F.3d at 1042. REASONS FOR REMAND 1. Entitlement to service connection for tinnitus is remanded. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. Evidence indicates that there may be outstanding relevant private treatment records. At the Veteran’s December 2020 hearing, the Veteran stated that he sought treatment for his acquired psychiatric disability and reports ringing of the ears for years. Additionally, the Veteran reports being in active combat during service which potentially raises the application of 38 U.S.C. § 1154(b). His DD 214 reflects service as a finance clerk. The AOJ should develop the issue of whether the Veteran engaged in combat with the enemy obtaining complete service personnel records, performance reports and unit records for the Veteran’s tour of duty in Vietnam. Finally, the Board has considered a remand for another medical examination due to the Veteran’s reports of a diagnosed anxiety disorder. Since there are outstanding treatment records which may assist in a more complete understanding of the Veteran’s symptoms, the Board defers consideration of obtaining a VA examination pending the receipt of additional records. See generally Kahana v. Shinseki, 24 Vet. App. 428 (2011) (discussing the “chicken-or-egg” dilemma faced by VA when requesting opinions and making credibility determinations with an undeveloped record, and recognizing that fact-finding is a responsibility that is ultimately committed to the Board and not a VA medical examiner). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for private treatment records for his tinnitus and acquired psychiatric disability, to include complete records from Dr. Patrick of St Vincent Med Group. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Develop the issue of whether the Veteran engaged in combat with the enemy obtaining complete service personnel records, performance reports and unit records for the Veteran’s tour of duty in Vietnam. 3. After completing the above action, to include any other development as may be indicated by any response received as a consequence of the actions, re-adjudicate the claims. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Adeleke, Tomi 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.