Citation Nr: 1311065 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 06-20 652 ) 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 upper and lower extremities, to include on the basis of exposure to herbicides. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The Veteran had active service from May 1966 to May 1968. His awards and decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board previously remanded this case in July 2008 and October 2011. 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 The Veteran seeks service connection for claimed neuropathies affecting each of his extremities. In July 2009, service connection for fibromyalgia was granted. Prior to the Board's October 2011 remand, however, the Veteran maintained that his claimed peripheral neuropathy resulted from his exposure to herbicides in service; he did not assert a relationship between the fibromyalgia and his claimed upper and lower extremity disorders. The Board remanded the case in October 2011 among other reasons to determine the nature of the malady or maladies purportedly affecting the Veteran's upper and lower extremities, and to obtain a medical opinion as to the etiology of each such malady identified. The resulting December 2011 VA examination resulted in a diagnosis of upper extremity neuropathy, and weakness affecting the lower extremities; the examiner apparently was not convinced that the Veteran had a neuropathy of the lower extremities, although other physicians have diagnosed such a condition. The examiner primarily addressed whether the upper and lower extremity disorders originated from service or from exposure to herbicides. With respect to any relationship to the service-connected fibromyalgia, the examiner explained that in his research, he was unable to locate any clear findings to attribute neuropathy to fibromyalgia. The Veteran's representative has recently made clear that the Veteran is alleging that his upper and lower extremity neuropathies can be attributed to the service-connected fibromyalgia pursuant to 38 C.F.R. § 3.310. Given that the December 2011 examiner's opinion as to the relationship between the Veteran's fibromyalgia and any neuropathies was not based on much, if any, rationale, and as it in any event did not address the question of whether the fibromyalgia chronically worsened any neuropathy of the extremities, the Board finds that further examination of the Veteran is necessary. The Board's October 2011 remand requested that the RO/AMC secure the records associated with a past Workers' Compensation claim of the Veteran, as well as records from a Dr. B. Neiman and the report of a December 13, 2006, VA Agent Orange examination. As to the Workers' Compensation records, the record reflects that the RO/AMC contacted the Veteran in July 2012, at which time he indicated that he had tried to obtain the records, but to no avail. The RO/AMC offered to obtain the records for him, and he agreed. VA thereafter requested that he complete the required authorizations to permit VA to assist him, but it is unclear from the records whether he complied. On remand, the RO/AMC should afford the Veteran another opportunity to allow VA to assist him in obtaining the referenced records. As to Dr. Neiman, the record reflects that the Veteran authorized VA to obtain records from that individual, as well as from a Dr. Yost with the Community Medical Center. In July 2012, VA attempted to obtain records from those individuals, without success. The record reflects that the RO/AMC did not thereafter advise the Veteran, including in the November 2012 supplemental statement of the case, that VA had been unable to obtain records from the above individuals. The pertinent regulation requires VA to advise an appellant when VA's assistance is unsuccessful. See 38 C.F.R. § 3.159(e) (2012). On remand, the RO/AMC should provide the Veteran with the requisite notice. With respect to the December 2006 Agent Orange examination report, the record reflects that although the RO/AMC obtained the treatment records referring to the existence of the report, the RO/AMC did not obtain the actual report. The Veteran's Virtual VA file also does not contain the referenced report. The case must therefore be remanded to obtain the report of the examination. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should obtain a copy of the December 13, 2006, VA Agent Orange examination report. If this document cannot be obtained, that fact should be indicated in the record, and the efforts of the RO/AMC to obtain the document should be explained. 2. The RO/AMC should send a notice letter to the Veteran advising him that efforts to obtain records from Drs. Neiman and Yost were unsuccessful, and that he is responsible for obtaining records from those sources. 3. The RO/AMC should request that the Veteran complete and return the appropriate form authorizing VA to request his Workers' Compensation records. If the Veteran complies, the RO/AMC should attempt to obtain the Veteran's Workers' Compensation records. 4. Thereafter, arrange for a VA examination of the Veteran to determine the nature and etiology of any current neuropathy of any, or all, extremities. All indicated studies should be performed. After review of the entire medical record and examination of the Veteran, the examiner should be requested to provide an opinion as to whether it is at least as likely as not that any current neuropathy of any, or all, extremities was caused or chronically worsened by the Veteran's service-connected fibromyalgia. The claims files must be provided to the examiner. The rationale for any opinion offered should be fully explained. 5. On completion of the above development, the RO/AMC should readjudicate the Veteran's claim. The Veteran and his representative should be provided a supplemental statement of the case and be afforded the appropriate opportunity to respond. 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). This claim must be afforded expeditious treatment. The law requires that all claims 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. 2012). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).