Citation Nr: 22010367 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 18-29 198 DATE: February 23, 2022 ORDER Entitlement to service connection for early-onset peripheral neuropathy, left upper extremity, to include as due to Agent Orange exposure, is granted. Entitlement to service connection for early-onset peripheral neuropathy, right upper extremity, to include as due to Agent Orange exposure, is granted. Entitlement to service connection for early-onset peripheral neuropathy, left lower extremity, to include as due to Agent Orange exposure, is granted. Entitlement to service connection for early-onset peripheral neuropathy, right lower extremity, to include as due to Agent Orange exposure, is granted. REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran's early-onset peripheral neuropathy of the left upper extremity was incurred in service, as due to exposure to herbicide agents. 2. The Veteran's early-onset peripheral neuropathy of the right upper extremity was incurred in service, as due to exposure to herbicide agents. 3. The Veteran's early-onset peripheral neuropathy of the left lower extremity was incurred in service, as due to exposure to herbicide agents. 4. The Veteran's early-onset peripheral neuropathy of the right lower extremity was incurred in service, as due to exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for early-onset peripheral neuropathy, left upper extremity, due to Agent Orange exposure are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for early-onset peripheral neuropathy, right upper extremity, due to Agent Orange exposure are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for early-onset peripheral neuropathy, left lower extremity, due to Agent Orange exposure are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for early-onset peripheral neuropathy, right lower extremity, due to Agent Orange exposure are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1968 to September 1970, with service in the Republic of Vietnam from March 1970 to September 1970. The Veteran was afforded the Vietnam Service Medal, Vietnam Campaign Medal with 60 Device, and the National Defense Service Medal. These matters come before the Board of Veterans' Appeal (Board) on appeal from a March 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a hearing before a Decision Review Officer (DRO). A transcript of that hearing is of record. In October 2021, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 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 disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure, including peripheral neuropathy. Effective for claims such as this one pending on September 6, 2013, VA replaced the term "acute and subacute peripheral neuropathy" with the term "early-onset peripheral neuropathy." See Disease Associated with Exposure to Certain Herbicide Agents: Peripheral Neuropathy, 78 Fed. Reg. 54763 (Sept. 6, 2013)). VA also removed Note 2 to § 3.309(e), which had required, in order for the presumption to apply, that the neuropathy be transient, appear within weeks or months of exposure to an herbicide agent, and resolve within two years of the date of onset. Under the new version of the regulation, early onset peripheral neuropathy will still need to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer needs to be transient. Id. By way of history, the Veteran filed a claim for service connection for acute and subacute peripheral neuropathy on November 24, 2014. The Board notes that the claim application did not specify for which extremity the Veteran filed and the March 2016 rating decision only adjudicated the issue of service connection for left lower extremity peripheral neuropathy. The Board finds that the RO improperly narrowed the claim. As an initial matter, the Board notes that the Veteran served in the Republic of Vietnam and exposure to herbicide agents, including Agent Orange, therefore is presumed. The Veteran has also been diagnosed with peripheral neuropathy of the upper and lower extremities during the course of the appeal. 38 C.F.R. §§ 3.307, 3.309. The outcome of the case thus turns on whether the Veteran's peripheral neuropathy is early-onset and manifested to a compensable degree within a year of the last date on which he was exposed to an herbicide agent. The Veteran contends that service connection is warranted for acute and subacute peripheral neuropathy. He explained that during service, after completing a two-mile run, he experienced a severe pain right across the top of his left leg and that immediately afterward the outside of his left leg went numb. The Veteran reported that he went to sick call but was told that nothing could be done. The Veteran endorsed pain and burning, cramping, and twitching sensations in the left leg since that time. At the Board hearing, the Veteran stated that after this he still experienced numbness on his left side and a burning sensation a few times per week. See October 2018 DRO Hearing Transcript and October 2021 Board Hearing Transcript. Service treatment records document complaints of left thigh and calf twitching and numbness in April 1970, while the Veteran was stationed in the Republic of Vietnam. The Veteran also reported bilateral leg cramping at his August 1970 separation examination. In July 2015, the Veteran was afforded a VA peripheral nerve conditions examination in June 2015. The Veteran reported that during basic training he experienced left thigh cramping and numbness while running in basic training, and that medical personnel told him he had nerve damage. The Veteran asserted that he has had the same condition since then and that it has now progressed to his hands and palms, including numbness in his hands and feet while driving and that he also has a history of dropping items. The Veteran also reported that his symptoms interfere with his ability to walk. The VA examiner referenced an April 1970 visit for left thigh and calf twitching and numbness, and accompanying x-ray report that revealed no results. The VA examiner determined that the Veteran had mild intermittent pain in the right upper extremity, mild paresthesias of the left lower extremity, and numbness of the bilateral upper and lower extremities, and decreased sensation in both shoulders. The VA examiner diagnosed the Veteran with idiopathic peripheral autonomic neuropathy but did not perform EMG studies or provide a nexus opinion regarding the Veteran's neuropathy. The RO obtained a VA medical opinion from another VA clinician in August 2015. This VA clinician opinioned that it was less likely than not that the Veteran's current neuropathies in his hands, feet, legs, or other locations were connected to service. The VA clinician reasoned that the Veteran's 1970 lateral femoral cutaneous nerve entrapment is typically considered an isolated condition that involved sensory changes on the anterolateral thigh and that it could be affected by wearing belts, activity, etc. The VA examiner determined that it would not be expected to be part of a different condition, such as idiopathic peripheral neuropathies and relied on the lack of EMG/NCS studies in service or post-service in determining that there was no relationship between the current neuropathy and what the Veteran experienced in service. Significantly, however, the clinician did not consider the Veteran's statement that the symptoms of numbness, tingling, burning, twitching and cramping sensations during service are the same ones he experiences to this day. The Board further notes that "a medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant's current disability and his military service." Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). In this case, the Board observes that there does not appear to be competent medical evidence diagnosing the Veteran with peripheral neuropathy until years after his separation from service. The Board also notes that his neurologic system was evaluated as normal on his August 1970 separation examination. Despite the foregoing, the Board finds it significant that the Veteran reported that he did develop pain, numbness, cramping, and burning sensations in his left leg that have since progressed to both of his arms and right leg, and the aforementioned medical evidence, specifically the July 2015 VA examination report, supports his contentions. Moreover, the Board finds he is competent to describe such symptomatology. In addition, he reported that he was never advised by military medical personnel to seek treatment for his symptoms during service or afterwards. As such, it appears the record contains competent and credible evidence the Veteran developed symptomatology of the extremities within his first post-service year which was ultimately diagnosed as peripheral neuropathy. Thus, the record does appear to contain evidence indicative of early-onset peripheral neuropathy for the purposes of 38 C.F.R. §§ 3.307, 3.309(e). The Board also notes that the law mandates resolving all reasonable doubt in favor of a claimant, to include issues of service origin. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that in light of the benefit of the doubt provisions of 38 U.S.C. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." For these reasons, the Board finds that the competent and credible evidence of record reflects it is at least as likely as not the Veteran developed peripheral neuropathy of the extremities as a result of his active service. Therefore, service connection is warranted for this disability. REASONS FOR REMAND Bilateral Hearing Loss The Veteran was afforded a VA audiological examination in September 2015 and was diagnosed with bilateral hearing loss. The VA examiner opined that the Veteran's hearing loss was less likely than not related to service and reasoned that in-service audiograms did not reflect a threshold shift for either ear. Significantly, however, the VA examiner did not address the Veteran's exposure to noise while serving in the Republic of Vietnam or his contentions that he had noise exposure as part of his Military Occupational Specialty (MOS) assignation to the lowest tasks in dental laboratory - making impressions without hearing protection. The VA examiner also did not specify what was the most likely etiology of the Veteran's current bilateral hearing loss. Based on the foregoing deficiencies, the Board finds that this opinion is inadequate, and an addendum opinion is needed. The matter is REMANDED for the following action: Schedule the Veteran for a VA audiological examination to address the onset and etiology of his bilateral hearing loss. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the Veteran's bilateral hearing loss, including the Veteran's competent account of his symptoms. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: Is it at least as likely as not that the Veteran's hearing loss was caused by or related to service, to specifically include noise exposure while in service? Please explain why or why not. In formulating a medical opinion, if relying to any extent upon the IOM study noted above, the examiner must (a) identify the medical text's qualifying or contradictory aspects; and (b) explain why the examiner found the contradictory aspects or conclusions in the IOM study to be less persuasive in this Veteran's case as to the question of whether delayed onset hearing loss is as likely as not etiologically related to in-service noise exposure. A complete rationale is required. Please also discuss the impact of the Veteran's in-service acoustic trauma on the hair cells in his cochlea, and state whether it is at least as likely as not that his bilateral hearing loss occurred sooner, or progressed to a greater degree of severity than it otherwise would have, as a result of his in-service acoustic trauma? A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.