Citation Nr: 21040402 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 18-28 563 DATE: July 3, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to herbicide exposure, is granted. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to herbicide exposure, is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to herbicide exposure, is granted. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to herbicide exposure, is granted. FINDINGS OF FACT 1. The Veteran served in Vietnam and was exposed to herbicide agents, to include Agent Orange. 2. The Veteran's left upper extremity peripheral neuropathy was more likely than not related to or caused by the Veteran's conceded exposure to Agent Orange. 3. The Veteran's right upper extremity peripheral neuropathy was more likely than not related to or caused by the Veteran's conceded exposure to Agent Orange. 4. The Veteran's left lower extremity peripheral neuropathy was more likely than not related to or caused by the Veteran's conceded exposure to Agent Orange. 5. The Veteran's right lower extremity peripheral neuropathy was more likely than not related to or caused by the Veteran's conceded exposure to Agent Orange. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the left upper extremity, to include as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for peripheral neuropathy of the right upper extremity, to include as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for peripheral neuropathy of the left lower extremity, to include as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for peripheral neuropathy of the right lower extremity, to include as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from December 1966 to November 1968 with confirmed service in the Republic of Vietnam. This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a virtual hearing before the undersigned Veterans Law Judge in July 2020. A transcript of the hearing is of record. Service Connection 1. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to herbicide exposure. 2. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to herbicide exposure. 3. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to herbicide exposure. 4. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to herbicide exposure. In this case, the Veteran seeks service connection for peripheral neuropathy of the left and right upper extremities and left and right lower extremities to include as due to herbicide exposure. To promote efficiency, the Board will address these matters together. In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). 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. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). With regard to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam War period. 38 C.F.R. § 3.307. For these Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); 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 lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). However, the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from alternatively establishing entitlement to service connection with proof of direct causation linking his claimed disability to his military service. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which, instead, concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation). First, the Veteran sought medical attention for his neuropathy in early 2008. He underwent a private nerve conduction study and need EMG study in February 2009. A statement was provided by the Veteran's neurologist, Dr. M.R. Here, the statement provided in May 2016 indicated that the Veteran's study showed evidence of a diffuse, symmetrical axon-loss peripheral neuropathy, with active denervation of muscles distally, severe in degree electrically in the lower extremities and moderate in degree electrically in the upper extremities. Furthermore, VA medical records indicate the Veteran is current diagnosed and being treated for idiopathic neuropathy with associated bilateral foot drop. Therefore, the Board finds adequate evidence of a current disability for purposes of service connection. As it pertains to an in-service event or injury, the Veteran contends his bilateral upper and lower extremity neuropathy is the result of exposure to Agent Orange. The Veteran has confirmed service in the Republic of Vietnam. Furthermore, during his virtual hearing, he testified that he served a full year in Vietnam and was in areas that were constantly sprayed. The Veteran also testified that during the nighttime, he would have to go "pull ambush patrols and we'd have to go out into that area that was just sprayed." As such, given his service in Vietnam and his credible testimony, the Board concedes exposure to herbicides to include Agent Orange. Therefore, given his conceded exposure to Agent Orange, the second element necessary for service connection has been met. With regard to the final element, a nexus, the Board finds the Veteran's peripheral neuropathy of the left and right upper extremities and left and right lower extremities to be more likely than not related to his conceded exposure to Agent Orange on a direct, not presumptive, basis. See Combee, 34 F.3d at 1043-1044. A positive nexus statement was provided by the Veteran's neurologist in May 2016. In the statement provided by Dr. M.R., the examiner noted that he has treated the Veteran's neuropathy since January 2009. He wrote the Veteran underwent bloodwork which ruled out treatable causes of peripheral neuropathy. Furthermore, Dr. M.R. indicated that the Veteran was not exposed to heavy alcohol or toxins in the workplace. Concluding, Dr. M.R. opined that, while the Veteran's peripheral neuropathy was not diagnosed within one year of exposure to Agent Orange while in Vietnam, it is his medical opinion that it is more likely than not related to his exposure to Agent Orange during Vietnam. Dr. M.R. provided the rationale that it is reasonable to assume that the exposure to strong herbicides, like Agent Orange, for one year caused irreversible damage to his peripheral nerves in his arms and legs. The Board finds this opinion to be significant probative value. Therefore, given the evidence of the Veteran's current diagnosis, his conceded exposure to Agent Orange, and the positive nexus opinion, the Board finds an entitlement to service connection on a direct, not presumptive, basis for peripheral neuropathy of the left and right upper extremities and left and right lower extremities to include as due to herbicide exposure is warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.