Citation Nr: 1311170 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 10-47 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to July 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. 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 A remand is necessary for further evidentiary development. VA has a duty to obtain relevant medical treatment records. See 38 C.F.R. § 3.159(c) (2012). The claims folder shows the Veteran received treatment from doctors at Grand ITASCA in Grand Rapids, Minnesota and the Minneapolis Clinic of Neurology for issues stemming from his peripheral neuropathy. However, the c-file and Virtual VA paperless claims file appear to be missing relevant treatment records. Specifically, Grand ITASCA medical records mention a prior right ankle fracture and 2008 left proximal tibial plateau fracture, but there is no record of diagnosis or treatment for these conditions in the c-file. See Grand ITASCA, Annual Physical, April 2011; see also Grand ITASCA, Chart Note, May 2009. As these conditions may be relevant to the issue on appeal, these medical records are necessary. On remand, all treatment records since 2007 from Grand ITASCA and the Minneapolis Clinic of Neurology should be obtained. See Hearing Transcript, April 2012, pg. 6. The Veteran has a current diagnosis of peripheral neuropathy of the lower extremities. See Letter from Dr. J.E.T., Minneapolis Clinic of Neurology, April 2012; see also Grand ITASCA, Consult, August 2010. The Veteran contends that his current peripheral neuropathy of the lower extremities, which he claims began with tingling in his toes in 2007-2008, is a result of being exposed to herbicides during service. See Hearing Transcript, April 2012, pg. 3. The Veteran served in Vietnam and it is conceded that he was exposed to herbicides during his Vietnam service. See Statement of the Case, November 2010. While, non-acute and non-subacute peripheral neuropathy is not a disorder for which presumptive service connection based on herbicide exposure is warranted, the unavailability of presumptive service connection does not preclude the Veteran from establishing service connection with proof of direct causation. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Upon enlistment in August 1967, the Veteran reported that he had been involved in a motorcycle accident in July 1966 that had crushed his right foot. See Report of Medical History, August 1967. On physical examination, his lower extremities were noted as normal; however, he was found to have a history of right foot fracture causing slight deformity and weakness. See Report of Medical Examination, August 1967. An August 1967 consultation noted that the Veteran received multiple fractures in his right foot due to the 1966 motorcycle accident and he complained of pain on the ball of his foot when it is weight bearing and tenderness upon physical examination. See Consultation Sheet, August 1967. An X-ray of the right foot revealed minimal osteoporosis of the entire foot, with well healed fractures with some joint changes. Upon separation in July 1969, the Veteran did not complain of any foot or lower extremity issues, except for noting his July 1966 broken right foot and lower leg. See Report of Medical History, July 1969. Upon separation examination, the Veteran's feet and lower extremities were found to be normal. See Report of Medical Examination, July 1969. There are no further reports in the Veteran's service treatment records of complaints, treatment, or diagnosis of any foot or lower extremity problems. While there is an April 2012 private opinion from Dr. J.E.T. in the record that provides a positive nexus, the opinion is couched in equivocal language ("Agent Orange is felt likely a frequent causative agent for polyneuropathy"), does not address the approximate forty year span between separation from service and the Veteran's first reported symptoms of peripheral neuropathy and does not discuss any possible impact the Veteran's prior right ankle fracture, left proximal tibial plateau fracture, and right foot and lower leg fracture could have on his current disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (medical opinion's probative value is determined by whether it is supported by a detailed rationale and explanation). After obtaining any outstanding treatment records, the Veteran should be afforded a VA examination and medical opinion to determine the current nature and likely etiology of the peripheral neuropathy. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. Accordingly, the case is REMANDED for the following action: 1. After securing the necessary releases, obtain all of the Veteran's treatment records from Grand ITASCA in Grand Rapids, Minnesota and the Minneapolis Clinic of Neurology from January 2007 to the present and associate them with the claims file. 2. After completion of the foregoing, schedule the Veteran for a VA neurological examination to determine the nature, extent, and etiology of any diagnosed peripheral neuropathy of the lower extremities. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All necessary tests should be conducted and all clinical findings reported in detail. The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others, review the record, and determine the nature, etiology and symptoms of any peripheral neuropathy of the lower extremities. Based on the examination and review of the record, the examiner is requested address the following: Is it at least as likely as not that any peripheral neuropathy of the lower extremities was incurred in service or is otherwise related to service, to include exposure to herbicides. A complete rationale should be given for all opinions and conclusions expressed. In providing the opinion, the examiner should address the significance of the pre-service right foot fracture, post-service left tibia fracture and presumed exposure to herbicides in service and the April 2012 private medical opinion. If the examiner cannot provide an opinion 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. 3. Then, readjudicate the issues of entitlement to service connection for peripheral neuropathy of the lower extremities. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. 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 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. 2012). _________________________________________________ M. E. LARKIN 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).