PERIPHERAL NERVE PARALYSIS

Summary

The Veteran, an Air Force Veteran who served from October 1969 to August 1973, appeals decisions denying service connection for esophageal cancer and a bilateral hand disability, and also seeks service connection for peripheral neuropathy of the upper extremities. The Board granted service connection for peripheral neuropathy of both the left and right upper extremities. The decision noted favorable findings from the agency of original jurisdiction (AOJ) that the Veteran participated in a toxic exposure risk activity (TERA) while serving in Guam, and that a May 2025 VA examination confirmed a diagnosis of peripheral neuropathy. The Board found the May 2025 VA opinion, which linked the peripheral neuropathy to toxic exposure, to be the most probative evidence, granting service connection. The claim for esophageal cancer was remanded because the February 2025 VA opinion was found inadequate; the examiner failed to adequately explain the connection between herbicide exposure and esophageal cancer, and did not provide an opinion on whether the cancer was otherwise directly related to service. The claim for bilateral hand disability was denied by the AOJ and not appealed to the Board. The Veteran's service records were void of any complaints or diagnoses related to peripheral neuropathy during service.

Rationale

Favorable VA examination finding; Toxic exposure risk activity in Guam; Benefit of the doubt applied

Full Decision Text

Citation Nr: A26037175
Decision Date: 04/21/26	Archive Date: 04/21/26

DOCKET NO. 250808-574336
DATE: April 21, 2026

ORDER

Service connection for peripheral neuropathy of the left upper extremity is granted.

Service connection for peripheral neuropathy of the right upper extremity is granted.

REMANDED

Entitlement to service connection for esophageal cancer is remanded.

FINDING OF FACT

The Veteran has a current diagnosis of peripheral neuropathy of the upper extremities; it is at least as likely as not that the disability is etiologically related to service.

CONCLUSION OF LAW

The criteria for an award of service connection for peripheral neuropathy of the upper extremities have been met.  38 C.F.R. §§ 1110, 1116B, 1131, 5107;38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Air Force from October 1969 to August 1973.  His decorations include the National Defense Service Medal.

These matters come to the Board of Veterans' Appeals (Board) on appeal from April and May 2025 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office.  The April 2025 rating decision denied service connection for esophageal cancer and the May 2025 rating decision denied service connection for a bilateral hand disability.  The Veteran timely appealed to the Board by filing a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) in August 2025, requesting direct review of the evidence considered by the agency of original jurisdiction (AOJ).  38 C.F.R. §§ 20.201, 20.202(b)(1).

The Board notes that the Veteran initially indicated on his VA Form 10182 that he was appealing decisions dated July 25, 2011, and August 1, 2025.  However, in a December 2025 Brief the Veteran, through his representative, clarified that it was his intent to appeal the April and May 2025 rating decisions.  The Board has liberally construed his VA Form 10182 to effectuate his intent.

Under the direct review option, the Board may only consider the evidence of record at the time of issuance of the April and May 2025 AOJ rating decisions.  38 C.F.R. § 20.301.  The Board cannot consider evidence submitted after those decisions were promulgated.

That said, for the reasons set forth below, the Board is remanding the Veteran's claim of entitlement to service connection for esophageal cancer to the AOJ for correction of a pre-decisional duty to assist error.  The AOJ will consider any additional evidence that has been submitted when that claim is readjudicated.  38 C.F.R. § 3.103(c)(2)(ii).

As a final introductory matter, the Board notes that service connection for esophageal cancer was previously denied in a February 2025 rating decision.  In the April 2025 decision on appeal, the AOJ found that new and relevant evidence had been presented or secured to warrant readjudication of the claim.  The Board is bound by that favorable finding.  38 C.F.R. §§ 3.104(c), 20.801(a).

Service Connection

The Veteran seeks to establish service connection for peripheral neuropathy of the hands.

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases-to include organic diseases of the nervous system-to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the
 current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases-to include organic diseases of the nervous system-to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder.  See 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307(i) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology.  However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

A Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary.  See 38 C.F.R. § 3.307(a)(6)(iii).  VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure, to include early onset peripheral neuropathy.  38 C.F.R. § 3.309(e).

On August 10, 2022, the President signed into law the Sergeant First Class Heath Robinson Honoring Our Promise to Address Comprehensive Toxics (PACT) Act of 2022, Pub. L. 117-168, 136 Stat. 1759 (2022).  The PACT Act extended the presumption of exposure to herbicide agents to veterans who served on Guam between January 9, 1962, and July 31, 1980.  Peripheral neuropathy is not a presumptive condition under the PACT Act.  However, the PACT Act led to the promulgation of 38 U.S.C. § 1168, which generally requires VA to provide a medical examination and opinion to any veteran with confirmed in-service toxic exposure and a current disability. 

A layperson is generally incapable of opining on matters requiring medical knowledge.  However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2).  A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation
 injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2).  A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation).  See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).

Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a).  See Davidson, supra.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  An approximate balance of the evidence includes, but is not limited to, equipoise.  Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).  Evidence is not in "approximate balance" or "nearly equal" when the evidence persuasively favors one side or the other.  Id.

In the May 2025 rating decision on appeal, the AOJ made favorable findings that the Veteran participated in a toxic exposure risk activity.  His service record shows he served in Guam which meets the criteria for conceding a toxic exposure risk activity.  In addition, a May 2025 VA examination confirmed a diagnosis of left and right upper extremity peripheral neuropathy.  Those favorable findings are binding on the Board and are not in dispute.  38 C.F.R. § 3.104(c).  The first and second elements of service connection as to the presence of a current disability and with regard to an in-service event, injury, or disease, have therefore been established.  The primary question for the Board's consideration is whether the Veteran's peripheral neuropathy of the upper extremities is related to his service, to include toxic exposure risk activity during service.

As noted, with the exception of early-onset peripheral neuropathy, peripheral neuropathy is not on the list of diseases that have been presumptively associated with exposure to herbicide agents.  An award of service connection on a presumptive basis is therefore not warranted.

As to direct service connection, the Veteran's service treatment records are void of any findings, complaints, symptoms, or diagnoses related to peripheral neuropathy of the upper extremities.

In May 2025 the Veteran underwent a VA peripheral nerves conditions examination. The examiner diagnosed bilateral upper extremity peripheral neuropathy since 2022.  The examiner opined that the Veteran's bilateral peripheral neuropathy of upper extremities was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The rationale was that the Veteran's symptoms did not begin until 2022 which is almost 50 years after service.  

However, as to whether the Veteran's bilateral peripheral neuropathy of the upper extremities is due to his participation in a TERA, the condition was at least as likely as not caused by the indicated toxic exposure risk activity(ies), after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran.  The rationale was that during service in Guam the Veteran was "exposed to Herbicide Agent-2,3,7,8-Tetrachlorodibenzodioxin (TCDD.)  Research has demonstrated a connection between peripheral neuropathy and Agent Orange Exposure."

The Board finds that the May 2025 VA medical opinion is the most probative evidence of record as to whether the Veteran's bilateral upper extremity peripheral neuropathy is etiologically related to his participation in a TERA.  The VA opinion was based on a review of the record, considered the synergistic effect of the Veteran's toxic exposures, cited to medical literature, and included a well-reasoned rationale.  As such, the Board affords the VA opinion significant weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). 

On review,
DD.)  Research has demonstrated a connection between peripheral neuropathy and Agent Orange Exposure."

The Board finds that the May 2025 VA medical opinion is the most probative evidence of record as to whether the Veteran's bilateral upper extremity peripheral neuropathy is etiologically related to his participation in a TERA.  The VA opinion was based on a review of the record, considered the synergistic effect of the Veteran's toxic exposures, cited to medical literature, and included a well-reasoned rationale.  As such, the Board affords the VA opinion significant weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). 

On review, the Board is satisfied that the requirements for an award of service connection on a direct basis have been satisfied.  The evidence, at a minimum, gives rise to a reasonable doubt on the matter.  38 C.F.R. § 3.102.  The appeal of this issue is granted.

REASONS FOR REMAND

Entitlement to service connection for esophageal cancer is remanded.

The Veteran seeks service connection for esophageal cancer.

In the April 2025 rating decision on appeal, the AOJ made favorable findings that the Veteran participated in a toxic exposure risk activity.  His service record shows he served in Guam which meets the criteria for conceding a toxic exposure risk activity.  In addition, a February 2025 VA examination confirmed a diagnosis of esophageal cancer.  Those favorable findings are binding on the Board and are not in dispute.  38 C.F.R. § 3.104(c).  The first and second elements of service connection as to the presence of a current disability and an in-service event, injury, or disease, have therefore been established.  The primary question for the Board's consideration is whether the Veteran's esophagal cancer is related to his service, to include toxic exposure risk activity during service.

In a February 2025 VA medical opinion, an examiner opined that the Veteran's esophageal cancer was less likely than not caused by the indicated toxic exposure risk activity(ies), after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran.  However, many of the studies cited in support of the examiner's conclusion were based on the reported incidence of deaths due to esophageal cancer among various groups of people who had been exposed to herbicide agents or similar-type chemicals. The examiner did not explain how these mortality rates relate to whether there is any relationship between the Veteran's herbicide agent exposure or his later development of esophageal cancer since presumably the mortality rate for any given cancer will be lower than the rate at which a population develops that type of cancer. In addition, the examiner failed to provide an opinion as to whether the Veteran's esophageal cancer is otherwise directly related to his service.

On review, the Board finds that the February 2025 VA medical opinion is not fully adequate.  The failure to obtain an adequate medical opinion constitutes a pre-decisional duty to assist error that must be corrected.

The matter is REMANDED for the following action:

Arrange to provide the record on appeal to a qualified VA examiner for purposes of assessing the etiology of the Veteran's esophageal cancer.  The examiner should review the record.

After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's currently diagnosed esophageal cancer was caused by the indicated toxic exposure risk activity(ies), after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. 

The examiner should also offer an opinion as to whether it is at least as likely as not (i.e., whether the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's currently diagnosed esophageal cancer had its onset in, or is otherwise attributable to, service.

A complete medical rationale for all opinions expressed must be provided.

The need for an in-person and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinions.

 

 

M. Schlickenmaier

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Adams, 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.