Citation Nr: 1010187 Decision Date: 03/17/10 Archive Date: 03/24/10 DOCKET NO. 07-37 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE 1. Entitlement to service connection for neuropathy of the upper extremities, including as due to herbicide exposure. 2. Entitlement to service connection for neuropathy of the lower extremities, including as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The appellant had active service from March 1964 to September 1970, including service in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of January 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The appellant testified at a videoconference hearing before the undersigned Acting Veterans Law Judge in December 2008. A transcript of the hearing has been associated with the claims file. In March 2009, the Board remanded the claim for further development. At that time, the Board also denied a claim for service connection for lipomas. The decision is final regarding that claim. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND After a careful review of the evidence of record, the Board finds that the claim must, unfortunately, be remanded once again. In March 2009, the Board requested that the appellant be scheduled for a VA examination to determine the etiology of any neuropathy in the upper and lower extremities. A VA examination was conducted in August 2009. However, upon review of the examination report, the Board finds that clarification is needed. In the examination report the examiner noted that the appellant reported that he started having shooting pains while he was in boot camp. He described pain in the left shoulder extending to the left fourth and fifth digits, as well as from the left hip extending to the fourth and fifth digits of the toes in the left foot. In regard to neuropathy of the upper extremities, the examiner noted that, in review of the claims file and service medical records, he could not find any complaints that verify the dates which the Veteran states that the symptoms started. However, as noted in the prior remand, the service treatment records show a diagnosis of ulnar nerve syndrome in July 1964, with complaints of weakness of grip and numbness in the area of the ulnar nerve distribution. Approximately 1 week later, the Veteran reported that his fingers remained numb, and the examiner found no change from the previous report. The examination report does not appear to acknowledge or address the documented in-service diagnosis. In regard to the neuropathy of the lower extremities, the examiner found that, according to the appellant's history, his left lower extremity symptoms only started in 1999. While the examiner initially noted in his report that the appellant had reported experiencing pain in his left lower extremity while in boot camp, he appears to have determined that the Veteran's current statements were inaccurate. However, the RO has determined that the Veteran engaged in combat with the enemy during his service. Therefore, the Veteran's statements regarding what happened in service are considered to be accurate, even though there is no official record to support them. Only statements that are inconsistent with the circumstances, conditions or hardships of combat will not be considered as accurate. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2009). In order to address these matters, a supplemental opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. The examiner who conducted the August 2009 examination should be requested to provide a supplemental opinion. If the examiner is not available, an opinion may be obtained by another qualified medical professional, based on a review of the record. If the reviewer determines that further examination is necessary, such should be scheduled. However, the Veteran should not be required to attend another examination as a matter of course, if an opinion can accurately and reliably be provided by file review alone. The entire claims file must be made available to the designated reviewer/examiner. The reviewer/examiner should provide an opinion as to whether there is a 50 percent or better probability that the Veteran's current neuropathy symptoms of the upper and/or lower extremities are etiologically related to the Veteran's military service, including as due to herbicide exposure. In addressing the upper extremities, the reviewer is asked to specifically discuss the in-service diagnosis of ulnar nerve syndrome, and whether any of the current symptoms may be a manifestation of that diagnosis. In addressing the upper and lower extremities, the Veteran's statements regarding injuries sustained, or symptoms experienced during service are considered to be accurate, and the opinion should account for those statements as true. A complete rationale for any opinion rendered should be provided. 2. Then, the RO or the AMC should readjudicate the issues on appeal. If either benefit sought on appeal is not granted to the appellant's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant 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). _________________________________________________ Lloyd Cramp Acting 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).