Citation Nr: 23002811 Decision Date: 01/17/23 Archive Date: 01/17/23 DOCKET NO. 20-22 041 DATE: January 17, 2023 REMANDED The issue of entitlement to service connection for peripheral neuropathy of left lower extremity, claimed as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1968 to July 1970, to include service in Korea May 1968 to June 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO, inter alia, reopened a previously denied claim for service connection for peripheral neuropathy and denied that claim on the merits. The Veteran disagreed with that decision and perfected an appeal to the Board. In March 2022, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. Regarding the claim for service connection for peripheral neuropathy of the left lower extremity, the Board notes that the claim was previously and finally denied in an October 2015 rating decision. Given the finality of the prior rating decision, normally, a separate analysis of whether new and material evidence has been received to reopen a previously denied claim in required, as it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Here, the Board has reviewed the evidence received since the claim was previously denied in October 2015 and concludes that new and material evidence, as defined by 38 C.F.R. § 3.156, to specifically include numerous statements from fellow servicemembers who reported that they served with the Veteran and that their service duties required them to work along the demilitarized zone (DMZ) in Korea, has been received. Thus, rather than engage in a lengthy analysis comparing the evidence submitted since the previous final denial with evidence previously of record, the Board will simply consider the claim "reopened" and will adjudicate only the issue of whether service connection is warranted for peripheral neuropathy of the left lower extremity. The Board additionally notes that in the November 2018 rating decision, the RO also denied service connection for bilateral hearing loss, tinnitus, hypertension, ischemic heart disease, and skin cancer. In his October 2019 notice of disagreement (NOD), and Veteran also disagreed with the denial of these claims, and a March 2020 statement of case (SOC) included the issues of entitlement to service connection for bilateral hearing loss, tinnitus, hypertension, ischemic heart disease, and skin cancer. However, after issuance of the March 2020 SOC, the Veteran filed a VA Form 10182 in which he opted the legacy appeal as to the issues of entitlement to service connection for bilateral hearing loss, tinnitus, hypertension, ischemic heart disease, and skin cancer into the Appeals Modernization Act (AMA). As such, those matters are no longer part of the current legacy appeal. Service Connection In the instant case, the Veteran is seeking service connection for peripheral neuropathy of the left lower extremity, which he believes is related to exposure to Agent Orange while stationed in Korea. Generally, to establish direct service connection, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether elements are met is based on an analysis of all the evidence of record, and evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Baldwin v. West, 13 Vet. App. 1, 8 (1999). The law further provides that there are certain diseases, to include early-onset peripheral neuropathy, that are associated with exposure to "herbicide agents" during active military, naval, or air service, and are thus presumed to have been incurred in or aggravated during active military service if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). Thus, a presumption of service connection arises for certain veteran presumed exposed herbicides, to include Agent Orange, who develop an identified disease recognized by VA's Secretary as etiologically related to such exposure. The Board acknowledges that VA recognizes that herbicides were used along the DMZ in Korea and that exposure to herbicides will be presumed if a veteran was assigned to a specified unit between April 1, 1968, and August 31, 1971. However, the Veteran does not contend, and the evidence otherwise fails to establish, that he was assigned to one of the units specified by the Department of Defense (DoD) as having presumed exposure to Agent Orange. The Board notes that it is undisputed that the Veteran served in South Korea from during the requisite time period, and that he was assigned to the "55th Military Police Company". The Veteran's service personnel records also document that the Veteran's military occupational specialty (MOS) was that of a military policeman and senior military policeman. In support of his claim, the Veteran has asserted that, while serving as a military policeman in South Korea, his duties required him to visit the DMZ, or work in close proximity to the DMZ. Specifically, the Veteran reported that in July 1969, he was ordered to the DMZ to help provide security for Secretary of State Roger Williams while he was on a visit to South Korea. The Veteran also reported that his duties include guarding the I Corp. commanding general who was stationed at Camp Red Cloud and to accompany him wherever he went, from Seoul to the DMZ. He further stated that he was tasked with guarding the tactical operations center, which area was void of vegetation, with accompanying prisoners for transport from the DMZ to the 8th Army Headquarters in Seoul, and working the checkpoints on the road to the DMZ, which required inspecting numerous trucks carrying chemicals, believed to be Agent Orange. In support of his assertions, the Veteran has submitted several buddy statements from his fellow service members who attested to the duties of a military policeman stationed at Camp Red Cloud, which align with the duties reported by the Veteran. Among the buddy statements were statements from two fellow servicemember who reported that they worked with the Veteran and that as part of their duties, they were assigned to patrol an extended area around Camp Red Cloud, to include patrolling up to the DMZ. The Board notes that the AOJ sought to verify one of the Veteran's reported in-service exposure events. Specifically, in July 2017, the AOJ made a request to the U.S. Army & Joint Services Records Research Center (JSRRC) to verify whether the Veteran may have been assigned to the DMZ for added Security when Secretary of State William Rogers visited South Korea during the period from July 31 to August 1, 1969. A response received in September 1969 stated that a coordinated search with the National Archives and Records Administration (NARA) failed to locate 1969 unit records submitted by the 55th Military Police Company. The JSRRC also stated that it could not confirm that the 55th Military Police Company was stationed at Camp Red Cloud. It was further stated that the 1969 Operational Reports Lessons Learned submitted by the 2nd Infantry Division confirmed that Secretary of State William Rogers visited South Korea on the dates in question and that he toured the I US Corps and 26th ROK Division areas, but that the Operational Reports Lessons Learned did not document any specific duties performed by members of the 55th Military Police Company along the DMZ. Overall, the Board finds that, although the Veteran's unit is not one identified as having operated in the DMZ during the qualifying time period, the Veteran's competent lay statements, which are supported by the statements submitted by his fellow service members, regarding having to perform duties along, or near, the DMZ are credible. Further, the response from the JSRRC is not persuasive evidence that the Veteran's reported duties did not place him at or along the DMZ. Indeed, the response from the JSRRC states that unit records from the 55th Military Police Company could not be located. The Board will not hold the lack of records documenting the activities of the 55th Military Police Company against the Veteran, and a lack of records is not persuasive evidence to refute the Veteran's lay statements. Thus, in light of the Veteran's credible lay statements regarding his service duties, Board finds that, when reasonable doubt is resolved in favor of the Veteran, it is likely that the Veteran's service duties required him to work in or near the DMZ such that it can be presumed that he was exposed to Agent Orange while stationed in Korea. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Having determined that the Veteran was as likely as not exposed to herbicide agents while stationed in Korea, the Board finds it necessary to remand the issue of entitlement to service connection for peripheral neuropathy of the left lower extremity for further development. In finding that a remand is necessary, the Board acknowledges that early-onset peripheral neuropathy is a disease that is associated with exposure to herbicide agents during active service. However, for that disease to be presumed to have been incurred in or aggravated during active military service, early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6). In the instant case, there is no evidence to support a finding that the Veteran had peripheral neuropathy that was manifest to at least a degree of 10 percent within the applicable time limit. As such, a presumption of the service connection is not warranted in this case. Although service connection is not warranted on a presumptive basis, a veteran is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure. See Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). In the instant case, the Veteran has submitted private medical records from Advanced Foot and Ankle Centers of Illinois in which it is indicated that possible causes of numbness/tingling in the left foot were discussed, to include "exposure to agent orange" in addition to other etiologies. The Board finds this evidence sufficient to trigger VA's duty to provide the Veteran with a medical examination to ascertain the likelihood that the Veteran has peripheral neuropathy of the left lower extremity that is due to in-service exposure to an herbicide agent. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (discussing the evidence required to trigger VA's duty to provide a medical examination or obtain a medical opinion). Accordingly, a remand is necessary for the Veteran to be afforded a VA examination in connection with his claim.. The matter is REMANDED for the following action: Arrange for the Veteran to undergo a VA examination in connection with his claim for service connection for peripheral neuropathy of the left lower extremity. Access to the electronic claims file must be made available to the examining clinician as he or she must consider the Veteran's documented medical history and assertions in providing the opinion requested below. (Continued on the next page) After examining the Veteran and reviewing the record, the examiner should identify all neurological disabilities of the left lower extremity. Then, with respect to any diagnosed neurological disability, the examiner should indicate whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the disability had its onset in or is otherwise related to the Veteran's active duty service, to include his likely in-service exposure to herbicide agents. A rationale for the opinion expressed must be provided. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.