Citation Nr: 21040091 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 15-13 576 DATE: July 2, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the left foot is granted. Entitlement to service connection for peripheral neuropathy of the right foot is granted. FINDINGS OF FACT 1. The Veteran's peripheral neuropathy of the left foot onset in service. 2. The Veteran's peripheral neuropathy of the right foot onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the left foot have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for peripheral neuropathy of the right foot have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1943 to February 1946, from April 1952 to April 1954, and from September 1969 to March 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by a Department of Veterans Affairs (VA) regional office (RO) rating decision. The Veteran testified before the undersigned in May 2018; a transcript is associated with the claims file. These matters were previously before the Board in June 2018 and May 2019, where the Board remanded the claims for further development. This claim was additionally before the Board in September 2019, where the Board denied the claims. However, the Veteran timely appealed to the Court of Appeals for Veterans Claims (Court). In a June 2020 order, the Court granted the parties' joint motion for remand (JMR) as the Board failed to provide an adequate statement of reasons or bases for its decision. In its most recent April 2021 decision, the Board remanded the claims for further development. Specifically, the Board found the October 2017 and January 2019 VA examinations inadequate, and remanded to obtain an addendum opinion. Service Connection Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 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 disability was incurred in service. 38 C.F.R. § 3.303(d). 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for peripheral neuropathy of the left foot 2. Entitlement to service connection for peripheral neuropathy of the right foot The Veteran contends that his peripheral neuropathy of the bilateral feet was caused by service, to include exposure to herbicides. The Veteran is diagnosed with peripheral neuropathy of the left and right foot. Therefore, the first Shedden element is satisfied. The Veteran's service treatment records also show that he was treated for foot pain in January 1973 and served in Vietnam (and is therefore presumed exposed to herbicides). Therefore, the second Shedden element is satisfied. The remaining question for the Board is determining whether the two are linked. After a review of the claims file, and resolving all doubt in favor of the Veteran, the Board concludes that they are. A review of the Veteran's service treatment records (STRs) shows no reports or complaints of peripheral neuropathy of the left or right foot. However, in an April 2015 lay statement, the Veteran remembered that he went to sick bay for pain in his feet around 1972; he remembers receiving a Cortizone shot for treatment. January 1973 service treatment records confirm that the Veteran complained of foot pain and was treated with a steroid injection. At a May 2018 hearing, the Veteran testified that he has evidence that his private physicians believe his peripheral neuropathy of the left and right feet are the result of exposure to defoliants. The Veteran was asked at the hearing if it was possible to provide the evidence that states his neuropathy was due to herbicide exposure, and he stated it was possible. No such statement has yet to be added to the claims file. The April 2021 Board decision found the October 2017 and January 2019 VA examinations inadequate as they failed to consider whether the Veteran's herbicide exposure caused his neuropathy directly. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Therefore, they will be given no probative weight. In an April 2021 addendum opinion, the VA examiner opined that the Veteran's left and right foot neuropathy was less likely than not caused by service. The examiner noted that per the Veteran's self-reports, he developed foot pain, now diagnosed as peripheral neuropathy, in 1972. The VA examiner stated that there was no credible medical evidence to support delayed onset peripheral neuropathy due to herbicide exposure. Resolving all doubt in the Veteran's favor, the Board finds that he is entitled to service connection for these disabilities. While the April 2021 addendum VA examiner stated that the Veteran's foot neuropathy was unrelated to herbicide exposure, to include a delayed onset theory, he still confirmed that the disorder first onset in service. The VA examiner stated very clearly that the Veteran "began to develop foot trouble" in 1972, while he was still on active duty, which has since been diagnosed as peripheral neuropathy. Even though peripheral neuropathy is not specifically listed as a disability entitled to presumptive service connection under 38 C.F.R. § 3.303(a) and (b), the Veteran still is entitled to service connection "when all the evidence, including that pertinent to service, establishes that the disease was incurred in service." 38 C.F.R. § 3.303(d). Here, the April 2021 VA examination provides sufficient evidence that the Veteran's current peripheral neuropathy of the bilateral feet had its genesis in service in 1972. As the Board resolves reasonable doubt in the Veteran's favor, any further discussion of the evidence is not necessary. Based on the above, the Board finds the evidence to be at least in equipoise as to whether the Veteran's peripheral neuropathy of the bilateral feet onset in service. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeals are granted. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.