Citation Nr: 1108317 Decision Date: 03/02/11 Archive Date: 03/17/11 DOCKET NO. 06-20 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for peripheral neuropathy of the legs and feet, claimed as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1967 to January 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). In September 2006 correspondence, the Veteran requested a Travel Board hearing; in February 2008, he withdrew the hearing request. The case was before the Board in August 2009 when it was remanded for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veteran served in Vietnam from May 1968 to January 1969. He alleges that his peripheral neuropathy of his legs and feet may be related to Agent Orange exposure during this service. Veterans who served in the Republic of Vietnam during this period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease manifested to a degree of 10 percent or more, the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309(e). When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service, to include as based on exposure to herbicides. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Governing regulation provides that an examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4). The United States Court of Appeals for Veterans Claims has held that the requirement that a disability "may be associated" with service is a "low threshold" standard. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Postservice treatment records include June 2005 correspondence from Texas Neurology Consultants stating that the Veteran's clinical history, examination and electrodiagnostic testing are compatible with a diagnosis of a mild axonal motor sensory neuropathy. It was further stated that while the exact cause of the disability was unclear, "[i]t is conceivable that it could be related to Agent Orange exposure." Postservice treatment records also include a September 2006 letter from Dr. P.W.H. stating the Veteran has been diagnosed with peripheral neuropathy and that it was "possible that his peripheral neuropathy might be related to the agent orange exposure." While such evidence does not meet the standard of proof necessary to establish service connection (see Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical evidence that is speculative, general, or inconclusive cannot be used to support a claim)), it is sufficient to satisfy the "low threshold" standard of 38 C.F.R. § 3.159(c)(4), as to when an examination/medical opinion is necessary (i.e., to clarify the nature and etiology of the Veteran's peripheral neuropathy of the legs and feet) for a proper assessment of a direct causation theory of entitlement to the benefit sought in accordance with Combee). Accordingly, the case is REMANDED for the following action: 1. The RO should arrange for the Veteran to be examined by a neurologist to ascertain the presence and nature/likely etiology of any peripheral neuropathy of the lower extremities. The examiner must review the Veteran's claims file (including this remand) in conjunction with the examination. All indicated studies and tests should be completed, and all clinical findings should be reported. Following examination of the Veteran, and review of his pertinent medical history, the examiner should opine whether it is at least as likely as not (a 50 percent or better probability) that his peripheral neuropathy is related to his exposure to herbicides (including Agent Orange) during service, or is otherwise related to his service. The examiner must explain the rationale for any/all opinions (to include a discussion of other possible causes for the Veteran's peripheral neuropathy in the event it is deemed to be unrelated to Agent Orange exposure). 2. The RO should then readjudicate this claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ George R. Senyk 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) (2010).