Citation Nr: 1007003 Decision Date: 02/25/10 Archive Date: 03/05/10 DOCKET NO. 08-11 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for peripheral neuropathy of the left upper extremity. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from September 1965 to October 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In this case, the Veteran's primary contention is that he developed peripheral neuropathy of the left upper extremity as a result of service, to include Agent Orange exposure. The evidence in support of the claim includes the Veteran's DD Form 214 which shows he served on active duty in the Republic of Vietnam during the Vietnam era, and therefore is presumed to have been exposed to Agent Orange. The post-service evidentiary record shows the Veteran first complained of left upper extremity weakness, atrophy of the forearm and triceps weakness of grip and loss of motor power in April 1994, 25 years post-service. The examiner concluded the Veteran had a mixed brachial plexus motor neuropathy. A March 2000 EMG study was consistent with motor neuron disease of somewhat restricted, but not with neuropathy. Multifocal motor neuropathy was later documented on electromyography (EMG) study in January 2001. Certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even though there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) (2006) are met. See 38 C.F.R. § 3.309(e) (2009). However, the Veteran has not been diagnosed as having acute or subacute peripheral neuropathy, a specific kind of peripheral neuropathy, which the governing regulation requires to have appeared within weeks or months of his last exposure to Agent Orange in Vietnam and to have resolved within two years of the date of onset. Nevertheless, even if a veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The VCAA law provides that an examination is necessary where there is competent evidence of a current disability, evidence that the current disability may be related to service, and the evidence is insufficient to decide the claim. See 38 U.S.C.A. § 5103A (West 2002). Given the Veteran's presumed herbicide exposure in Vietnam and in the absence of any prior VA opinion addressing whether the above disorder is causally related to service or any event of service, additional development is needed. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Issue to the Veteran additional or corrective VCAA notice with regard to his service connection claim, such as providing him with updated notice of what evidence has been received and not received by VA, as well as who has the duty to request evidence, and what development must be undertaken by VA in accordance with applicable case law. See generally Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5103, 5103A; 38 C.F.R. § 3.159. In particular, provide the Veteran with specifically tailored notice of the information and evidence needed to establish service connection for herbicide exposure, pursuant to 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.309(e) (2008); 73 Fed. Reg. 65280 (May 7, 2009) (to be codified at 38 C.F.R. 3.309(e)). 2. Ask the Veteran to provide any medical records, not already in the claims file, pertaining to post-service treatment or evaluation of his claimed disability, or to provide the identifying information and any necessary authorization to enable the AMC/RO to obtain such evidence on his behalf. All attempts to procure records should be documented in the file. If the records identified by the Veteran are unavailable, a notation to that effect should be inserted in the file. He and his representative are to be notified of unsuccessful efforts in this regard, in order that the Veteran be provided the opportunity to obtain and submit those records for VA review. 3. The AMC/RO should arrange appropriate VA examination(s) to determine the nature, extent, and onset the Veteran's claimed peripheral neuropathy. The AMC/RO should forward the claims folder to an appropriate VA examiner(s) for review and issuance of an opinion as to whether there is a nexus between any diagnosed disability and service, or to his service in Vietnam and presumed exposure to herbicides. Prior to the examination, the claims folder must be made available to the examiner(s) for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner(s). The examiner(s) should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms. The examination should include any diagnostic testing that is deemed necessary for an accurate assessment and the examiner(s) should review the results of any testing prior to completing the report. A complete diagnosis should be provided. If no disability is present, the examiner should state so. Based on a review of the claims file and the results of the Veteran's physical examination, the examiner(s) should be asked to provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any current peripheral neuropathy, if diagnosed, had its onset during service, or is causally related to exposure to herbicides in service or is in any other way causally related to the Veteran's service. The opinion should be supported by a clear rationale, and a discussion of the facts and medical principles involved are of considerable assistance to the Board. If any currently diagnosed disability cannot be regarded as having been incurred while the Veteran was in service, the examiner should specifically indicate so. If the examiner cannot render an opinion with resorting to speculation, he should state so and discuss why an opinion cannot be provided. 4. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the claim by evaluating all evidence obtained after the last statement or supplemental statement of the case (SSOC) was issued. If the benefit sought on appeal remains denied, furnish the Veteran and his representative an appropriate SSOC containing notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal, including VCAA and any other legal precedent. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).