Citation Nr: 0006613 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 97-18 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for peripheral neuropathy due to herbicide agent exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Schechter, Associate Counsel INTRODUCTION The veteran served on active duty from September 1950 to April 1955 and from June 1955 to November 1971. The appeal arises from the March 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, denying service connection for acute and sub-acute peripheral neuropathy due to herbicide agent exposure; and denying reopening of a claim for service connection for peripheral neuropathy. The Board remanded the case in July 1999 for development. Following RO development, including a VA clinical examination, the case has been returned to the Board for review. As the veteran is herein granted service connection for peripheral neuropathy due to herbicide agent exposure in service, the question of whether the veteran has presented new and material evidence to reopen a claim for service connection for peripheral neuropathy on a direct basis, not due to herbicide agent exposure, is moot. FINDINGS OF FACT 1. The veteran is presumed to have been exposed to herbicide agents in service. 2. The veteran developed peripheral neuropathy as a result of herbicide agent exposure in service. CONCLUSION OF LAW Peripheral neuropathy was incurred as a result of herbicide agent exposure in service. 38 U.S.C.A. § 1110, 1131, 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303(d) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As noted above, the veteran contends that he is entitled to service connection for peripheral neuropathy due to herbicide agent exposure in service in Vietnam. As the Board noted in its July 1999 Remand, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (1999). Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 (1999), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) (1999) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (1997) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; non-Hodgkin's lymphoma; acute and sub-acute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (1999). "For purposes of this section, acute and sub-acute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to a herbicide agent and resolves within two years of onset." 38 C.F.R. § 3.309(e), Note 2. The veteran's herbicide agent exposure is presumed, pursuant to 38 C.F.R. § 3.307, because the veteran served on active duty in Vietnam during the Vietnam era and because he has been diagnosed with a disease, peripheral neuropathy, subject to the presumptive service connection provisions of 38 C.F.R. § 3.309(e). See McCartt v. West, 12 Vet App 164 (1999) The claims file contains an August 1996 medical opinion by D. W. Pletcher, M.D., a family practice physician, to the effect that the veteran's herbicide agent exposure probably caused his peripheral neuropathy. Accordingly, with cognizable (medical) evidence causally linking the veteran's current peripheral neuropathy to herbicide agent exposure in service, the veteran's claim for service connection for peripheral neuropathy due to herbicide agent exposure is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Tidwell v. West, 11 Vet. App. 242 (1998). The Board is not in a position to grant service connection for the veteran's peripheral neuropathy due to herbicide agent exposure on a presumptive basis, as the veteran's peripheral neuropathy did not "[appear] within weeks or months of exposure to a herbicide agent and [resolve] within two years of onset." 38 C.F.R. § 3.309(e), Note 2. However, in the case of Combee v. Brown, 34 F. 3d 1039 (Fed Cir. 1994), the United States Court of Appeals , Federal Circuit, found that, under the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, a veteran was not precluded from presenting proof of direct service connection between a disorder and exposure even if the disability in question was not among statutorily enumerated conditions which were presumed to be service related, the presumption not being the sole method for showing causation. Hence the veteran may establish service connection for peripheral neuropathy by presenting evidence establishing that it is at least as likely as not that his peripheral neuropathy was caused by his presumed inservice herbicide agent exposure. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). As the Board further noted in its July 1999 remand, the August 1996 medical opinion by Dr. Pletcher to the effect that there was a high likelihood of a causal link between the veteran's inservice herbicide agent exposure and his peripheral neuropathy, appears to have relied on the presumption that there were not other medical conditions present potentially causative of the peripheral neuropathy. However, the medical record contains notations or diagnoses of multiple conditions which, by themselves or in combination, may be causative of the veteran's peripheral neuropathy, including carpal tunnel syndrome with ulnar nerve palsy (linked to computer assembly factory work), degenerative arthritis of the spine with C5-C6 radiculopathy and spondylolysis at L5 bilaterally, congenital spina bifida occulta with a history of spondylolisthesis, hypertension and rheumatic heart disease, diabetes, a nervous condition with associated somatic conditions, and a dependent personality with panic crisis producing pain and sensory symptoms. However, as submission of a well-grounded claim creates a duty on the VA to verify or discount the evidence presented, the Board in July 1999 remanded the claim, in pertinent part, for a VA medical opinion addressing the question of incurrence of peripheral neuropathy due to herbicide agent exposure in service. Once it has been determined that the claim is well grounded, the VA has a statutory duty to assist the veteran in the development of evidence pertinent to the claim. The Board is satisfied that the RO has made all reasonable efforts to obtain all available evidence pertinent to the claim and that proper appellate development, including appropriate notice to the veteran, has been made. The Board is satisfied that all available evidence necessary for an equitable disposition of the appeal has been obtained. The Board therefore finds that the duty to assist has been met. 38 U.S.C.A. § 5107. The Board notes that in order to establish service connection for a disability, there must be objective evidence that establishes that such disability either began in or was aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection may be granted for any disease diagnosed after discharge from 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) (1999). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet.App. 309, 314 (1993). The VA medical opinion requested in the July 1999 Board Remand has been obtained. In November 1999 a VA examiner reviewed the claims folder, and noted the veteran's history of multiple medical conditions in the years post service which may be causally related to his history of peripheral neuropathy post service, including a panic disorder with conversion symptoms. Nonetheless, the examiner also noted the veteran's presumed exposure to herbicide agents in service, and concluded that it was at least as likely as not that the veteran's diffuse peripheral neuropathy, with its protracted 30-year history, had been initiated by damage caused by herbicide agent exposure in service. In the absence of clear contrary medical evidence, this November 1999 VA medical opinion, coupled with the positive August 1996 opinion by Dr. Pletcher, provide a preponderance of the evidence supporting the claim for entitlement to service connection for peripheral neuropathy on the basis of herbicide agent exposure. Accordingly, a grant of service connection is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(d); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for peripheral neuropathy due to herbicide agent exposure is granted. BRUCE E. HYMAN Member, Board of Veterans' Appeals