DEGENERATIVE ARTHRITIS

Summary

The veteran served on active duty from June 1967 to June 1969. He appealed the denial of service connection for a lumbar spine disability and bilateral peripheral neuropathy of the upper and lower extremities. The veteran claimed his lumbar spine disability resulted from an in-service injury, reporting back pain during service and experiencing worsening symptoms post-service, though he sought chiropractic care rather than physician visits due to work and family commitments. The Board found the veteran's lay statements regarding the history and continuity of his lumbar spine condition to be competent and credible, outweighing negative VA medical opinions that relied heavily on the lack of post-service treatment records. The Board applied the benefit of the doubt, granting service connection for the lumbar spine disability. For the peripheral neuropathy claims, the veteran asserted a link to herbicide exposure during Vietnam service. The Board noted conflicting medical evidence, with some VA examinations finding no objective evidence of neuropathy and others finding it less likely than not related to toxic exposure. However, a November 2024 VA examination opined that the bilateral neuropathy was at least as likely as not caused by toxic exposure, citing scientific evidence supporting herbicide exposure as an etiology and noting the absence of other comorbidities. The Board found the evidence in approximate balance, applying the benefit of the doubt, and granted service connection for bilateral upper and lower extremity peripheral neuropathy due to presumed herbicide exposure.

Rationale

Competent and credible lay statements regarding history and continuity; Negative VA nexus opinions based solely on lack of treatment records found inadequate; Benefit of the doubt applied due to approximate balance of evidence

Full Decision Text

Citation Nr: A26040607
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 260403-644515
DATE: April 30, 2026

ORDER

Service connection for a lumbar spine disability is granted.

Service connection for left lower extremity peripheral neuropathy is granted.

Service connection for left upper extremity peripheral neuropathy is granted.

Service connection for right lower extremity peripheral neuropathy is granted.

Service connection for right upper extremity peripheral neuropathy is granted.

FINDINGS OF FACT

1. The Veteran's lumbar spine disability is at least as likely as not related to in-service back pain.

2. The Veteran served in the Republic of Vietnam during the qualifying period and is presumed to have been exposed to herbicide agents in service.

3. The evidence is at least in equal balance that the Veteran's left lower extremity peripheral neuropathy is related to his presumed exposure to herbicide agents. 

4. The evidence is at least in equal balance that the Veteran's left upper extremity peripheral neuropathy is related to his presumed exposure to herbicide agents. 

5. The evidence is at least in equal balance that the Veteran's right lower extremity peripheral neuropathy is related to his presumed exposure to herbicide agents.

6. The evidence is at least in equal balance that the Veteran's right upper extremity peripheral neuropathy is related to his presumed exposure to herbicide agents.

CONCLUSIONS OF LAW

1. The criteria for service connection for a lumbar spine disability are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for entitlement to service connection for left lower extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 

3. The criteria for entitlement to service connection for left upper extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

4. The criteria for entitlement to service connection for right lower extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

5. The criteria for entitlement to service connection for right upper extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1967 to June 1969. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 3, 2025 rating decision regarding the issues on entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, and a November 3, 2025 rating decision regarding the issue of entitlement to service connection for a lumbar spine disability issued by the Department of Veterans Affairs (VA) Regional Office (RO).

In the April 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran selected the Board's Direct Review docket. Based upon the selection of the Direct Review option, the Board may only consider the evidence of record as of April 7, 2025 (date of notification) regarding the issues of peripheral neuropathy, and the evidence as of November 4, 2025 regarding the issues of entitlement to service connection for a lumbar spine disability-the dates of the rating decisions on appeal. See 38 C.F.R. § 20.301. If the Veteran submitted evidence that was added to the record after these dates, the Board did not consider it. If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence. See 38 C.F.R. § 3.2501.

In April 2026, the Veteran, via his attorney representative, waived the right to select a different Board review docket. See Williams v. McDonough, 37?Vet. App.?305 (2024). The Board accepts this written waiver and will proceed with the adjudication of this appeal.

1. Entitlement to service connection for a lumbar spine disability
 See 38 C.F.R. § 20.301. If the Veteran submitted evidence that was added to the record after these dates, the Board did not consider it. If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence. See 38 C.F.R. § 3.2501.

In April 2026, the Veteran, via his attorney representative, waived the right to select a different Board review docket. See Williams v. McDonough, 37?Vet. App.?305 (2024). The Board accepts this written waiver and will proceed with the adjudication of this appeal.

1. Entitlement to service connection for a lumbar spine disability

The Veteran contends that his current diagnosed lumbar spine disability was related to active service. The Veteran reported that he first injured his lower back during active service and had continued to have experienced back problems since separation from service.  

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d).

Service connection generally requires competent evidence showing: (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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The Veteran is competent to report symptoms and experiences observable by his or her senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

Favorable findings on the rating decision on appeal show that during the November 2019 VA spine examination, the Veteran was diagnosed with degenerative arthritis, intervertebral disc syndrome, and spinal stenosis of the lumbar spine. Additionally, the evidence was noted to show an in-service injury as on the Veteran's separation examination in June 1969, he reported back trouble. 

As such, the question for the Board is whether the Veteran's diagnosed lumbar spine disability is related to his in-service reports of back pain. 

An October 1967 service treatment record shows that the Veteran was treated for crepitation and pain affecting the lower back. Additionally, during his separation examination in June 1969 he reported lower back pain. 

A March 2021 statement from the Veteran reported that he first injured his back during active service when he fell off an obstacle and another incident when he fell onto a steel ramp. The Veteran reported that over the years his back had gotten worse. The Veteran reported that in the 1970s he sought treatment with a chiropractor and in the 1980s/1990s he was still experiencing back pain. The Veteran reported that he has only gone to a chiropractor for treatment. Regarding the absence of medical treatment for his lower back since separation from active service he reported that he had five kids and a management job, and did not want to miss work due to physician visits for back pain. 

Regarding nexus, VA examiners in November 2019, May 2023, and April 2024 opined that it was less likely than not that the Veteran's current lumbar spine disability was related to active service. The VA examiners noted that while the Veteran was treated for back pain during active service, the absence of treatment from separation from service in 1969 to 2019 indicated that there was no nexus. The VA examiners cited to medical literature to support the provided opinions. The VA examiners also concluded that the current back conditions were more likely due to the normal aging process. 

The negative VA nexus opinions of record essentially rely upon the lack of treatment record for a lumbar spine disability from separation from service to 2019. However, the lack of contemporaneous medical evidence alone is not an adequate basis to find that the Veteran's claimed conditions are not related to service. See Buchanan v. Nicholson, 451 F. 3d 1331 (
iners noted that while the Veteran was treated for back pain during active service, the absence of treatment from separation from service in 1969 to 2019 indicated that there was no nexus. The VA examiners cited to medical literature to support the provided opinions. The VA examiners also concluded that the current back conditions were more likely due to the normal aging process. 

The negative VA nexus opinions of record essentially rely upon the lack of treatment record for a lumbar spine disability from separation from service to 2019. However, the lack of contemporaneous medical evidence alone is not an adequate basis to find that the Veteran's claimed conditions are not related to service. See Buchanan v. Nicholson, 451 F. 3d 1331 (2006). In this regard, these medical opinions are inadequate if they are based solely on the absence of documentation in the record and do not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Here, the Board finds the Veteran's statements competent and credible, and finds that lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence).  

Here, the Veteran has provided competent and credible statements regarding the history of his lumbar spine disability since separation from service. Furthermore, the Veteran reported that he did not seek care with a physician but did seek chiropractic care. The Veteran also reported that due to his family and work position he did not want to miss work for his low back pain. 

The Board has reviewed other, relevant competent evidence and finds the Veteran's credible lay statements that his lumbar spine disability onset during service are more probative than the examiner's opinion.  The Board also finds there is no evidence to call into question the Veteran's credibility in reporting long standing back pain. 

As a result, the Board finds that after reviewing the complete record, the evidence is in approximate balance and that the benefit-of-the-doubt rule is for application. 38 U.S.C. § 5107(b). Accordingly, service connection for a lumbar spine disability, is granted. 

2. Entitlement to service connection for left lower extremity peripheral neuropathy

3. Entitlement to service connection for left upper extremity peripheral neuropathy

4. Entitlement to service connection for right lower extremity peripheral neuropathy

5. Entitlement to service connection for right upper extremity peripheral neuropathy

The Veteran contends that he has bilateral upper and lower extremity peripheral neuropathy as a result of his exposure to herbicides during active duty while he was deployed to the Republic of Vietnam. 

Favorable findings noted on the rating decision on appeal show that the Veteran participated in a Toxic Exposure Risk Activity (TERA). The August 2024 TERA memo shows that the Veteran was exposed to herbicides due to Republic of Vietnam service.

VA regulations provide that if a veteran was exposed to an herbicide agent (such as Agent Orange) during active service, service connection is presumed for the following disorders: AL amyloidosis; chloracne or other acneform diseases consistent with chloracne; diabetes mellitus, type 2; Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii); 38 C.F.R. § 3.309.

Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that the availability of presumptive service connection from some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039,
i's sarcoma, or mesothelioma). 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii); 38 C.F.R. § 3.309.

Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that the availability of presumptive service connection from some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation.

An October 2022 VA peripheral neuropathy examination report shows that the VA examiner did not diagnose any peripheral nerve condition affecting the Veteran. 

A May 2023 VA lumbar spine examination report shows that the Veteran was diagnosed with bilateral lower extremity radiculopathy associated with the lumbar spine disability. 

A June 2024 VA medical opinion examination report shows that the VA examiner, after an examination of the Veteran and review of the claims file, opined that the Veteran did not have any objective evidence of a peripheral neuropathy the bilateral upper and lower extremities.

An August 2024 VA medical opinion examination report shows that the VA examiner opined that the upper and lower bilateral neuropathy was less likely than not caused by the indicated toxic exposure risk activities, 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. 

A November 2024 VA medical opinion examination report shows that the VA examiner opined that the Veteran's bilateral upper and lower extremity neuropathy were at least as likely as not caused by the indicated toxic exposure risk activities, 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 VA examiner remarked that the Veteran had no history of diabetes are other co-morbidities that were causal agents of neuropathy. The VA examiner did, however, note the Veteran's exposures during active service to herbicide agents. The VA examiner reported that there was scientific and medical evidence that supports herbicide exposures as an etiology of neuropathy. Therefore, based on all of the evidence reviewed, a nexus was established.

A January 2025 VA medical opinion examination report shows that the VA examiner, after a review of the claims file, determined that there was no objective medical evidence found during physical examination to support a diagnosis of a chronic right upper extremity peripheral neuropathy condition so no medical opinion was required.

An April 2025 VA peripheral nerves examination report shows that the VA examiner did not diagnose the Veteran with any peripheral nerve condition or peripheral neuropathy. The VA examiner reported that the Veteran did not have any symptoms attributable to a peripheral nerve condition. Muscle strength testing, reflex examination, and sensory examination were all normal for the upper and lower extremities. All nerve groups affected were also noted as normal. EMG studies were noted to have not been performed. The VA examiner remarked that although the Veteran reported symptoms of upper and lower extremities moderate bilateral constant pain, moderate bilateral, paresthesias, and moderate bilateral numbness, there was insufficient objective evidence found to diagnose the claimed right lower extremity peripheral neuropathy, left lower extremity peripheral neuropathy, or left upper extremity peripheral neuropathy

In reviewing the evidence of record, the Board finds that the evidence is at least in approximate balance regarding the Veteran's claim of entitlement to service connection for neuropathy affecting the bilateral upper extremities and bilateral lower extremities due to herbicide exposure. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, reasonable doubt shall be resolved in favor of the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, that doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. An accurate determination of etiology is not a condition precedent to granting service connection, nor is definite etiology or obvious etiology. Further, a veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail.

Initially, the Board is aware of the conflicting medical evidence as to whether the Veteran's has current peripheral nerve disabilities affecting the bilateral upper and lower extremities and furthermore whether the diagnosed disabilities were related to in-service herbicide exposure. However, the Board concludes that in this case, as it now stands, the evidence of
 be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. An accurate determination of etiology is not a condition precedent to granting service connection, nor is definite etiology or obvious etiology. Further, a veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail.

Initially, the Board is aware of the conflicting medical evidence as to whether the Veteran's has current peripheral nerve disabilities affecting the bilateral upper and lower extremities and furthermore whether the diagnosed disabilities were related to in-service herbicide exposure. However, the Board concludes that in this case, as it now stands, the evidence of record is at least in relative equipoise on the material issue of nexus. 38 U.S.C. § 5107(b). The Board finds that none of the medical opinions are more probative than the other opinions of record. Here, the Veteran, during the course of the appeal, has been diagnosed with bilateral upper and lower extremity neuropathy in November 2024. Additionally, the record shows that the Veteran the November 2024 VA examiner opined that it was as likely as not that the Veteran's peripheral neuropathy of the bilateral upper and lower extremities is related to in-service herbicide exposure.

While the Board notes that other VA examination reports and examiners indicated that the Veteran did not have a current diagnosis of peripheral neuropathy affecting the extremities, the November 2024 VA examination report was supported by a reasoned analysis of relevant medical facts concerning the Veteran with citations to medical literature. Neives-Rodriguuez v. Peake, 22 Vet. App. 295, 301-04 (2008). 

(Continued on the next page)

?

Accordingly, the Board finds that the evidence is at least in equipoise that the Veteran's bilateral upper and lower extremity peripheral neuropathy are related to his presumed exposure to herbicide agents. Thus, having resolved all reasonable doubt in the Veteran's favor, service connection for bilateral upper and lower extremity peripheral neuropathy is warranted, and the claim is granted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

 

 

Paul Sorisio

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Dworkin

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.