Citation Nr: 1749108	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  13-34 449	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1. Entitlement to service connection for a right lower extremity neurological disability, to include as secondary to exposure to an herbicide agent.

2. Entitlement to service connection for a left lower extremity neurological disability, to include as secondary to exposure to an herbicide agent.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

W. R. Stephens, Associate Counsel



INTRODUCTION

The Veteran served on active duty from March 1970 to October 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Regional Office (RO) in Pittsburgh, Pennsylvania.

The Board previously remanded this matter in July 2015 for further evidentiary development.


FINDINGS OF FACT

1. The Veteran is presumed to have been exposed to herbicide agents as a result of service within the Republic of Vietnam.

2. Peripheral neuropathy of the bilateral lower extremities was not present during service, or within one year after the last date on which the Veteran was exposed to herbicide agents.

3. Peripheral neuropathy of the bilateral lower extremities is related to active service, to include as result of exposure to herbicide agents therein.


CONCLUSIONS OF LAW

1. Peripheral neuropathy of the right lower extremity was incurred in active service as due to in-service herbicide exposure.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102; 3.303, 3.304 (2017).

2. Peripheral neuropathy of the left lower extremity was incurred in active service as due to in-service herbicide exposure.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102; 3.303, 3.304 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran has asserted that his peripheral neuropathy of the lower extremities is the result of his exposure to herbicide agents while in the Republic of Vietnam.  

Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty."  38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service).  An appellant may establish chronicity or continuity of symptomatology for a chronic disease.  38 C.F.R. § 3.303 (b).

To establish entitlement to service-connected compensation benefits, 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."  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) 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.  38 U.S.C.A. § 1116 (a)(3); 38 C.F.R. §§ 3.307, 3.309. 

If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected even though there is no record of such disease during service.  38 C.F.R. § 3.309 (e); 75 Fed. Reg. 53,202 -53,216, 53,205 (Aug. 31, 2010).  Early-onset peripheral neuropathy is a disease identified under section 3.309(e).  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."  38 C.F.R. § 3.307(6)(ii).

The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation.  Stefl v. Nicholson, 21 Vet. App. 120   (2007); see also Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994).  Importantly, "[p]resumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions...are intended as liberalizations applicable when the evidence would not warrant service connection without their aid."  38 C.F.R. § 3.303 (d).

The Veteran's service records confirm that he served on active duty in Vietnam and his exposure to herbicide agents is thus presumed.  

The Veteran has been diagnosed with peripheral neuropathy of the lower extremities.  

Service treatment records do not document any relevant complaints, symptoms, or diagnoses.  A May 1971 examination and an October 1971 separation examination documented normal lower extremities and neurologic systems upon separation.  The Veteran specifically denied any relevant symptoms in an October 1971 report of medical history.  

The Board acknowledges the Veteran's reports that he experienced relevant symptoms in service and sought treatment at MASH units that was not recorded.  The Veteran has also reported that symptoms first developed in the 1980's and became increasingly severe.  The Veteran is competent to report as much.

Having reviewed the evidence of record, there is not sufficient evidence to determine that the Veteran's peripheral neuropathy of the lower extremities manifested to a degree of 10 percent within one year of the Veteran's last exposure to herbicide agents.  As a result, service connection is not warranted on a presumptive basis.  38 C.F.R. §§ 3.307(6)(ii); 3.309 (e).

However, the Board has determined that service connection for peripheral neuropathy of the lower extremities on a direct basis is warranted.  See Stefl, supra; see also Combee, supra.

As noted, the Veteran has reported that he has experienced a continuity of relevant symptoms since his military service, and that such symptoms increased in severity beginning in the 1980's.  There are two VA medical opinions, issued in October 2015 and May 2017, which conclude that the Veteran's peripheral neuropathy of the lower extremities is less likely than not related to his military service, specifically exposure to herbicide agents.  Both base their opinions on the history of onset of Veteran's peripheral neuropathy and that it does not conform to the requirements for presumptive service connection.  The latter opinion appears to cite to the most recent National Institutes of Health studies from which VA established the presumptive service connection requirements.  

The Veteran has submitted private medical opinions in November 2013 from a neurologist and in May 2017 from a primary care physician who both concluded that it was at least as likely as not that the Veteran's peripheral neuropathy was due to exposure to herbicide agents.  The earlier private examiner's opinion was brief and conditional with no rationale.  The latter private examiner in accurately relied on his understanding that VA has found that herbicide is a presumptive cause of peripheral neuropathy without mention of the limitations on onset.  He also noted that "all other causes of his neuropathy have been ruled out by appropriate testing" without explanation of the test results and what possible causes were ruled out.   
The two VA examiners go through the history of onset and one examiner refers to the 2012 studies (not just to the presumptive listings) and relies on those findings that herbicide induced peripheral neuropathy should appear within 1 year of exposure and resolve in 2 years.

Having considered the conflicting medical evidence of record and the Veteran's lay statements, the Board has determined that all opinions have shortcomings in the basis for their conclusions and lack of detail in their rationales.  The Board acknowledges that there are differences in competent medical opinions and that there has been extensive medical and epidemiological research on the issue.  The Board finds that further development for additional opinions would likely continue to produce different conclusions.  Moreover, the Board will place some probative weight on the general but poorly explained finding of the private physician that testing has ruled out all other causes.  As there is at least an approximate balance of positive and negative evidence of record as to whether the Veteran's currently diagnosed peripheral neuropathy of the lower extremities is directly related to his in-service exposure to herbicide agents, the Board has determined that service connection for peripheral neuropathy of the lower extremities is warranted on a direct basis.  38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102.  See Stefl, supra; see also Combee, supra.


ORDER

Entitlement to service connection for peripheral neuropathy of the right lower extremity is granted.

Entitlement to service connection for peripheral neuropathy of the left lower extremity is granted.



____________________________________________
J. W. FRANCIS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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