Citation Nr: 22028167 Decision Date: 05/12/22 Archive Date: 05/12/22 DOCKET NO. 19-13 196 DATE: May 12, 2022 ORDER Entitlement to service connection for peripheral polyneuropathy, right lower extremity, to include as secondary to Agent Orange exposure is granted. Entitlement to service connection for peripheral polyneuropathy, right upper extremity, to include as secondary to Agent Orange exposure is granted. Entitlement to service connection for peripheral polyneuropathy, left lower extremity, to include as secondary to Agent Orange exposure is granted Entitlement to service connection for peripheral polyneuropathy, left upper extremity, to include as secondary to Agent Orange exposure is granted. REMANDED Entitlement to a compensable rating for service-connected bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran's right lower extremity peripheral polyneuropathy is at least as likely as not related to his service in Vietnam and exposure to Agent Orange. 2. The Veteran's right upper extremity peripheral polyneuropathy is at least as likely as not related to his service in Vietnam and exposure to Agent Orange. 3. The Veteran's left lower extremity peripheral polyneuropathy is at least as likely as not related to his service in Vietnam and exposure to Agent Orange. 4. The Veteran's left upper extremity peripheral polyneuropathy is at least as likely as not related to his service in Vietnam and exposure to Agent Orange. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral polyneuropathy, right lower extremity, to include as secondary to Agent Orange exposure have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for peripheral polyneuropathy, right upper extremity, to include as secondary to Agent Orange exposure have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for peripheral polyneuropathy, left lower extremity, to include as secondary to Agent Orange exposure have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for peripheral polyneuropathy, left upper extremity, to include as secondary to Agent Orange exposure have been met. 38 U.S.C. §§ 1110, 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 October 1969 to October 1971. He served in the Republic of Vietnam. VA has conceded herbicide exposure. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2021. A transcript of the hearing is associated with the claims file. 1. Entitlement to service connection for peripheral polyneuropathy, right lower extremity, to include as secondary to Agent Orange exposure. 2. Entitlement to service connection for peripheral polyneuropathy, right upper extremity, to include as secondary to Agent Orange exposure. 3. Entitlement to service connection for peripheral polyneuropathy, left lower extremity, to include as secondary to Agent Orange exposure. 4. Entitlement to service connection for peripheral polyneuropathy, left upper extremity, to include as secondary to Agent Orange exposure. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A claimant bears the evidentiary burden to establish entitlement to the benefit sought. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). When 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 claimant. 38 U.S.C. § 5107(b). The benefit of the doubt applies when the evidence for and against is in "approximate balance" or "nearly equal," but does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Turning to the evidence, the Veteran was afforded a VA examination in April 2017 for his neuropathy disability. However, no opinion was provided as to the etiology of his neuropathy and whether it was due to service, to include herbicide exposure. The Veteran submitted a VA opinion in January 2022 from his treating physician, Dr. J.M. In the opinion, the Veteran was diagnosed with sensory motor axonal neuropathy. His physician opined "there is at least a 51% probability that [the Veteran's] neuropathy can be linked to his exposure to dioxin/Agent Orange." The examiner reasoned that he could find no other type of personal exposure other than herbicide exposure that could have caused his neuropathy. The examiner listed and ruled out factors that can cause neuropathy. Additionally, regarding the "one-year manifestation period," the examiner stated the following: "based on medical literature, neuropathy can be latent for decades. The Board finds that the positive medical opinion establishes a nexus between the Veteran's peripheral polyneuropathy disability, and his conceded Agent Orange exposure. There is no VA opinion to the contrary. As such, the criteria for service connection for peripheral polyneuropathy of the bilateral upper and lower extremities have been met. 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to a compensable rating for service-connected bilateral hearing loss is remanded. During the Veteran's November 2021 hearing, he testified that his symptoms have worsened since his last examination. The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Therefore, the Board finds that the Veteran should be afforded an examination to assess the current severity of his service-connected bilateral hearing loss. The matters are REMANDED for the following action: 1. Associate with the claims folder updated VA treatment records. If the Veteran is evaluated for hearing loss in the clinic setting, ensure that the record includes the actual audiometric results and identification of the word list testing used. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 3. Thereafter, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and allow an appropriate period of time to respond and return the case to the Board. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.