Citation Nr: 1303168 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 05-35 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities (BUEs) and bilateral lower extremities (BLEs), to include as secondary to service-connected varicose veins or, in the alternative, as due to in-service herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from July 1961 to July 1982. This matter was originally before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board denied this claim in a September 2010 decision. The Veteran appealed the claim to the United States Court of Appeals for Veterans Claims ("CAVC" or the "Court"). In September 2011, the Court granted a Joint Motion for Remand (JMR) vacating the September 2010 decision and remanding the matter for further development. Thereafter, the claim was once again before the Board in May 2012. The Board remanded the matter to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim in accordance with the terms of the September 2011 JMR. The case is once again before the Board for appellate consideration of the issue on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran claims he has polyneuropathy of the BUEs and BLEs related to his military service. Essentially he contends he had symptoms of numbness, pain, tingling, itching, and burning of all four extremities that began during his military service. He is unsure of the cause of his symptoms and, in fact, claims his type of neuropathy has never been precisely diagnosed. He believes his neurological problems stem from in-service herbicide exposure, in-service treatment for a right leg laceration, or his service-connected varicose veins. Based on the evidence currently of record, service treatment records are silent as to any complaints, treatment, or diagnoses specifically related to neuropathy or neurological abnormality. The Veteran was in a serious accident in May 1970 causing a laceration of the right leg. He was hospitalized for two months. Subsequent medical records do not indicate any neurological abnormalities related to the laceration. The Veteran claims his early symptoms were inaccurately attributed to varicose veins rather than to a separate condition involving his peripheral neuropathy. Currently, the Veteran is service-connected for varicose veins. At the very least, the Veteran believes his neuropathy is secondary to varicose veins. See 38 C.F.R. § 3.310 (2012) (indicating a disorder will be service-connected if found due to or aggravated by a service-connected disability). He further contends the symptoms began shortly after initiating his overseas duties in Korea and Vietnam. Thus, he alternatively believes his neuropathy is associated with herbicide exposure. Service personnel records show that the Veteran served in Korea near the Demilitarized Zone (DMZ) in 1968 and 1969, and that he also served in the Republic of Vietnam for a period of 18 days in October 1971. He is presumed to have been exposed to herbicides, specifically Agent Orange. See 38 C.F.R. § 3.307(a)(6). Based on the circumstances of his service, the Veteran can establish service connection as a matter of presumption if neuropathy was manifested to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to herbicide agents during active military service, or if neuropathy was manifested to a degree of 10 percent or more within a year after separation from service. See 38 C.F.R. §§ 3.307(a)(6), 3.309(a), and 3.309(e). Even if a presumption is found inapplicable, the Veteran can still establish entitlement to service connection if any currently diagnosed neuropathy is attributed to his in-service symptoms, his in-service right leg laceration, his in-service herbicide exposure, or any other incident of his military service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (indicating where a presumption is found inapplicable, a claimant is not precluded from establishing service connection for disability due to proof of direct causation). As mentioned above, service connection for neuropathy is also warranted if the evidence indicates neuropathy was either caused or aggravated by another service-connected disability, in this case, varicose veins. 38 C.F.R. § 3.310. After service, the Veteran claims he had continuous symptoms of neuropathy in all four extremities since separation of service. Although treatment for varicose veins throughout the years is well documented, the Veteran was not diagnosed with any neurological abnormality until 2010, decades after service. At that time, polyneuropathy of the bilateral lower extremities was found. The Veteran has never been diagnosed with a neurological abnormality of the upper extremities. In February 2010, the Veteran was afforded a VA examination to ascertain the diagnoses and likely etiology of his neurological complaints. In the examination report, and within a March 2010 addendum, it was noted that the examiner only specifically tested the lower extremities based on the Veteran's symptoms of burning and itching in the legs, feet and toes. The examiner opined that the Veteran had polyneuropathy of the BLEs, but no BUE abnormality. He further found the diagnosis to be of unknown origin, but not related to his military service. The Board originally denied the claim relying heavily on the February 2010 VA examination report and the March 2010 addendum. The parties to the September 2011 JMR, however, found that the 2010 VA examination and addendum were incomplete. Specifically, it was noted that the examiner, among other things, never tested the upper extremities and did not adequately address all theories raised by the Veteran. This includes the theory of whether the neuropathy could be "secondary" to the Veteran's service-connected varicose veins. The Board remanded the claim in May 2012 to obtain an additional VA examination in accordance with the September 2011 JMR. The Veteran was afforded an additional VA examination in June 2012. At that time, the examiner did address all theories of entitlement. The report, however, indicated a current EMG test (including a test involving the upper extremities), was requested, but had not yet been completed. The examiner noted an addendum would be provided once the report was available. The claims folder does not contain an updated EMG test or any additional opinion from the examiner. In light of the incomplete diagnostic testing and non-compliance with the Board's prior remand directive, the Board finds the June 2012 examination inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stegall v. West, 11 Vet. App. 268 (1998). A new examination is indicated. Currently, the claims folder only contains service treatment records from 1970 to 1982. The RO has made numerous attempts to obtain any missing records, but has had little success. In a December 2012 statement, the Veteran's representative argues that the RO never looked for the missing service treatment records. Within the statement, the representative specifically identifies missing lab slips from 1974, and missing periodical physicals dated in 1977 and 1981. Given that it is necessary to remand this claim for other reasons, the RO is to make an additional attempt to obtain any missing service treatment records, to the extent they exist, in order to ensure the claims folder is complete. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding VA records are considered part of the record on appeal since they are within VA's constructive possession). The RO is to also take this opportunity to obtain recent VA outpatient treatment records from March 2012 to the present. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify and provide release forms for any and all records of private or VA treatment received for his BUEs and BLEs. After release forms are obtained, obtain the Veteran's medical records from any identified private provider. VA records from March 2012 to the present must also be obtained. All efforts to obtain medical records must be fully documented, and the VA facility must provide a negative response if records are not available. 2. Contact the NPRC, the U.S. Army, or any other appropriate agency to obtain any and all missing service treatment records for the Veteran from July 1961 to July 1982. Specifically noted in this regard are records reported as missing including records from 1961 to 1970, 1974 lab slips, a 1977 periodic physical, and a 1981 periodic physical. All efforts to obtain these records must be fully documented. 3. After obtaining the above records, to the extent available, schedule the Veteran for a neurological examination to determine the current nature and likely etiology of any neuropathy found involving both the bilateral upper and lower extremities. The examiner should consider the following: whether any neuropathy found is secondary to the Veteran's service connected varicose veins; whether any neuropathy found is attributable to Agent Orange exposure; whether any neuropathy found is attributable to in-service complaints of itching, tingling and burning; and whether any neuropathy found is attributable to an in-service May 1970 right leg laceration, or attributable to any other incident of his military service. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. EMG testing of all four extremities must be conducted. After the examination, EMG testing, and review of the record, the examiner is to address the following: (a) Does the Veteran have any neurological disabilities affecting the upper extremities or the lower extremities? If so, identify the specific diagnosis. (b) Please consider the Veteran's description of symptoms throughout the years and provide a medical opinion as to the likely etiology of any neurological disorder diagnosed. Specifically answer the following: (i) is it at least as likely as not (50 percent probability or greater) that any currently diagnosed BLE or BUE disorder was incurred in service, or is otherwise directly related to service, to include the in-service symptoms, the right leg laceration, or Agent Orange exposure? (ii) If the answer to (i) is no, is it at least as likely as not (50 percent probability or greater) that the Veteran's service-connected varicose veins caused or aggravated the BLE and/or BUE neurological disorders beyond the natural progression of the disease? Aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician must indicate, to the extent possible, the approximate level of BLE and/or hips disabilities present (i.e., a baseline) before the onset of the aggravation. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is also to address and reconcile the conflicting medical evidence in this case regarding the Veteran's current diagnoses and likely etiology any diagnosed disabilities, especially with the other 2010 and 2012 VA examinations. 4. Then, readjudicate the Veteran's claim. If any benefit sought remains denied, issue a supplemental statement of the case to the Veteran and his representative, and provide an opportunity to respond, before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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 2002). _________________________________________________ DENNIS F. CHIAPPETTA 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) (2012).