Citation Nr: 21042432 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-33 544 DATE: July 13, 2021 ORDER Entitlement to service connection for left upper extremity peripheral neuropathy is granted. Entitlement to service connection for right upper extremity peripheral neuropathy is granted. Entitlement to service connection for left lower extremity peripheral neuropathy is granted. Entitlement to service connection for right lower extremity peripheral neuropathy is granted. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran's right and left upper extremity peripheral neuropathy is related to service. 2. The evidence is in equipoise as to whether the Veteran's right and left lower extremity peripheral neuropathy is related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right and left upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for right and left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1969 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. In August 2018, the Board remanded the matter for further development. As remand directives have been substantially complied with, the Board will proceed with adjudication of the claims. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2019). 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, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). 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). VA regulations provide that a Veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307 (a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the enumerated diseases listed in 38 C.F.R. § 3.309 (e). Acute and subacute (early onset) peripheral neuropathy, if manifest to a degree of 10 percent or more for an herbicide exposed Veteran may be presumed service connected. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309 (2019). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for right and left upper extremity peripheral neuropathy. 2. Entitlement to service connection for right and left lower extremity peripheral neuropathy. The Veteran seeks service connection for peripheral neuropathy of the upper and lower extremities contending that the condition was caused by his service in Vietnam. After having reviewed the evidence of record, the Board finds that service connection is warranted. Initially, the Board notes that the Veteran's military personnel records confirm that he served in Vietnam from June 1969 to May 1970. Therefore, herbicide exposure is conceded. While early onset peripheral neuropathy is a presumptive agent herbicide related condition, the evidence of record indicates that the Veteran was diagnosed with peripheral neuropathy in September 2013, many years after his period of his active service. Therefore, it did not manifest to a degree of 10 percent or more within one year of his separation from service or the last alleged date of last exposure to herbicides as is required under the VA regulation. See 38 C.F.R. § 3.309 (e). Thus, service connection on a presumptive basis is not warranted. Notwithstanding the above, the Board notes, however, that in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). To that end, the record shows a September 2015 written correspondence where the Veteran reported having symptoms of neuropathy in his feet while in Vietnam which he described as a burning sensation. He reiterated these statements in his June 2018 hearing and reported that the symptoms started shortly after returning from Vietnam. He further reported that he was referred to a podiatrist on several occasions when he complained of his feet, but he was never diagnosed with a condition. However, he was finally diagnosed with neuropathy by a neurologist. In an October 2019 VA medical opinion, the examiner found that the Veteran's peripheral neuropathy of the bilateral upper and lower extremities was more than 50 percent related to service, to include exposure to Agent Orange. In doing so, the examiner considered the Veteran's reported symptoms of burning feet and pain in service and found that there is evidence that shows how his disease developed during his active duty years. Conversely, the Board recognizes the April 2020 Supplemental Statement of Case where the RO noted that there is evidence that has linked the Veteran's neuropathy to his sciatica. Nevertheless, since the Veteran has competently and credibly reported having symptoms since service, and the VA examiner has attributed the Veteran's neuropathy to service, the evidence is at least in equipoise. Therefore, in resolving reasonable doubt in the Veteran's favor, service connection for peripheral neuropathy of the bilateral upper and lower extremities is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.