Citation Nr: 22045874 Decision Date: 08/12/22 Archive Date: 08/12/22 DOCKET NO. 08-09 543 DATE: August 12, 2022 ORDER Entitlement to service connection for right lower extremity peripheral neuropathy is granted. Entitlement to service connection for left lower extremity peripheral neuropathy is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's bilateral lower extremity peripheral neuropathy is related to active duty service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral lower extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to June 1970. These matters come before the Board of Veterans' Appeals (Board) from a September 2007 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, among other things, denied the claim of service connection for bilateral foot condition. In July 2010, the Veteran testified during a Travel Board hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Board remanded these claims for further development in March 2012, February 2013, November 2014, August 2016, August 2017, and October 2019. As the Board is, for the reasons explained below, granting the benefits sought in full, discussion of compliance with the Board's October 2019 remand instructions is unnecessary. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran submitted a Privacy Act request in August 2020 that has yet to be fulfilled by the VA. However, given that the Board is granting the benefits sought in full, there is no prejudice to the Veteran in proceeding with adjudication of the claims. In correspondence dated June 2022, the Veteran was notified that the VLJ who presided over his July 2010 Board hearing was unavailable to participate in his appeal, and he was offered the opportunity to be scheduled for another hearing. Applicable law and regulations required that the VLJ who conducted a hearing in the legacy appeals system participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. The Veteran was notified that if he failed to respond within 30 days of the correspondence it would be assumed that he did not want another hearing, and the Board would procced accordingly. As the Veteran did not respond within 30 days of the correspondence, the Board will proceed with adjudicating the appeal. Entitlement to service connection for bilateral lower extremity peripheral neuropathy The Veteran contends that his bilateral lower extremity peripheral neuropathy is due to his exposure to herbicide agents in the Panama Canal Zone and that he has experienced bilateral lower extremity peripheral neuropathy symptoms since the 1970s. He indicated in an October 2003 statement that he clearly remembered spray trucks traveling through Howard Air Force Base several times a week spraying herbicides, pesticides, or a combination of both to reduce the jungle growth and the insect population. Lay statements from the Veteran's wife, a former servicemember who served with the Veteran and his wife, and another former servicemember who served with the Veteran all corroborated the Veteran's account. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a presumptive basis for if a veteran was exposed to an herbicide agent during service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Under 38 U.S.C. § 1116(a)(2) and 38 C.F.R. § 3.309(e), peripheral neuropathy is not a disease presumed service-connected to herbicide agent exposure unless it is early onset. However, service connection may still be granted on a direct, actual causation basis. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a Veteran from establishing service connection with proof of actual direct causation). A June 1997 memorandum from the Department of Defense (DoD), Defense Pest Management Information Analysis Center indicated that pesticide applicators were required to maintain records of application of restricted-use pesticides for only two years. Thus, there were no records of chemical defoliants used in Panama. A September 2005 VA Formal Finding Memorandum noted that there was no evidence of use, testing, or storage of tactical herbicides, such as Agent Orange, in the Panama Canal Zone or elsewhere in Panama. A June 2008 VA e-mail indicated that the DoD list of herbicide use and test sites outside Vietnam did not show any use, testing, or storage of tactical herbicides, such as Agent Orange, in the Panama Canal Zone or elsewhere in Panama. The e-mail additionally noted that there was no record with DoD of small-scale brush or weed-clearing activity around the base, and there was no way to know the chemical content of any such non-tactical herbicide use. An October 2007 article associated with the Veteran's claims file indicated that a former Army officer in charge of the herbicide agent testing program reported that remaining barrels of Agent Orange were left in Panama and probably were stored for general use at several military bases. An August 2016 VA report of Investigations into the Allegations of Agent Orange in the Canal Zone and Panama found that there was no credible documentation to support the claims that veterans were exposed to Agent Orange while stationed in Panama and Canal Zone during the Vietnam era. However, the report noted in its introduction that the VA has not had a comprehensive search of the records that were dispersed to facilities across the United States. In September 2017, a VA physician noted that the Veteran's service treatment records did not reveal any diagnosis of or treatment for neuropathy during active service. The Veteran's history indicated that the neuropathy symptoms began in the 1990's, many years after he left service. Review of the medical literature (including UpToDate, Medline and PubMed) revealed that the pesticides involved in this case (DDT and chlordane) are organochlorine pesticides. They are in a different class of compound from organophosphate pesticides. The organochlorines are suspected endocrine disrupters in both animals and humans and linked to endocrine disorders such as thyroid disease and reproductive disorders. In terms of neurotoxicity, the organochlorine pesticides increase neuroexcitability and have shown some potential to result in tremors and seizures. An association with peripheral neuropathy, however, has not been demonstrated for these compounds. Therefore, it was less likely than not that the Veteran's diagnosed peripheral neuropathy had onset in, or is otherwise related to, military service, to include reported exposure to non-tactical herbicides and pesticides. In February 2021, a VA physician found that, although the Veteran reported symptoms arising in service or the 1970s, extending to the current presentation, medical evidence did not support the claim. It was unlikely the Veteran would not have reported symptoms arising in service, at separation, or proximate to service. The Veteran reported onset as occurring in the 1990s on a 2015 Disability Benefits Questionnaire, which was contradictory to the Veteran's claim of onset in the 1970s. The objective medical evidence thereby supported onset as occurring 20 years post-service. Neuropathy due to Agent Orange exposure or other events in service would be anticipated to arise during that exposure or within one year of exposure, not 20 plus years later. Though the Veteran reported symptoms consistent with neuropathy as arising in service with chronicity until the current time, the medical evidence did not support the claim. Therefore, it was less likely than not that the Veteran's neuropathy had its nexus in service due to any cause, including Agent Orange/herbicide exposure. Additionally, a 2007 electromyograph (EMG) was inconclusive for a radiculopathy or neuropathy of the left lower extremity. A March 2020 EMG was consistent with that diagnosis. For the following reasons, entitlement to service connection for bilateral lower extremity peripheral neuropathy is warranted. A January 2021 VA treatment record noted the Veteran's diagnosis of bilateral lower extremity peripheral neuropathy. Thus, the Veteran meets the current disability requirement. Regarding the Veteran's contention that he was exposed to herbicide agents in service, the Board finds that the evidence is at least evenly balanced that the Veteran was exposed to chemicals during his service in the Panama Canal Zone, to include insecticides and pesticides. Military personnel records reflect that the Veteran served in the Panama Canal Zone during his active duty service. Furthermore, there is nothing to explicitly contradict his reports of exposure to chemicals, to include insecticides and pesticides, and his reports, as well as the lay statements of record, are consistent with the evidence of record and the circumstances of his service. Moreover, the June 1997 DoD memorandum indicated that there were no records of chemical defoliants used in Panama only because pesticide applicators were required to maintain records of application of restricted-use pesticides for only two years. Thus, the Veteran's reports of exposure to chemicals, to include insecticides and pesticides, are credible, and the Veteran meets the in-service injury or disease requirement. 38 C.F.R. § 3.303(a) (each disabling condition for which a Veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence); 38 C.F.R. § 3.102 (the benefit of the doubt doctrine applies to any point within a claim as well as its ultimate disposition). The remaining question is therefore whether a nexus exists between the Veteran's bilateral lower extremity peripheral neuropathy disabilities and exposure to chemicals in service, to include insecticides and pesticides. In this regard, the Veteran has testified that he has experienced bilateral lower extremity peripheral neuropathy symptoms since separation from service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). While the September 2017 and February 2021 VA physicians indicated that the Veteran reported that he experienced bilateral lower extremity peripheral neuropathy symptoms since the 1990s, the Veteran refuted that finding in a November 2020 statement reporting that he experienced the peripheral neuropathy symptoms within six months of separating from service. Thus, given the Veteran's November 2020 rebuttal and his other statements throughout the appeal period that he has experienced peripheral neuropathy symptoms since separation from service, the Board finds his statements of continuous symptoms credible and competent. Moreover, the September 2017 and February 2021 VA opinions are inadequate as they did not consider the Veteran's competent and credible statements of his continuous peripheral neuropathy symptoms since the 1970s. Buchanan, 451 F.3d at 1336, n. 1 (VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). To the extent that the grants of service connection for the disabilities are based primarily on lay evidence, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself." Id. at 1335. At this point, the Board could remand the claims for VA opinions. However, a request for opinions could be construed as obtaining additional evidence for the sole purpose of denying the claims, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's bilateral lower extremity peripheral neuropathy are related to active duty service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral lower extremity peripheral neuropathy is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Chinyere E. Orie Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.