Citation Nr: 1311191 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 06-32 436 ) 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 upper and lower extremities (claimed as unspecified nerve condition), to include as due to exposure to Agent Orange, to include as due to an undiagnosed illness. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to July 1968, and from December 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina that denied reopening the Veteran's claim for entitlement to service connection for peripheral neuropathy. The Veteran testified at a videoconference hearing in October 2008 before a Veterans Law Judge who has since retired from the Board. A transcript of that hearing is contained in the record. In January 2013, VA informed the Veteran that he had a right to another Board hearing, but he did not respond to the letter. The contents of the letter indicated that if the Veteran did not reply to the letter within 30 days, the Board would assume he did not wish to have another hearing. As such, the Veteran will not be scheduled for another hearing. This appeal was most recently before the Board in June 2011, at which time his claim was remanded for further evidentiary development. The case has been returned to the Board for further appellate consideration. 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. REMAND The Board sincerely regrets having to remand the Veteran's appeal another time. However, this remand is necessary to for further evidentiary development, and to ensure compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In essence, the Veteran contends that his peripheral neuropathy of the upper and lower extremities is either directly related to service, due to exposure to Agent Orange in the Republic of Vietnam, or due to an undiagnosed illness from chemical exposure in the Persian Gulf. As noted in the previous remand, the Veteran indeed served both in Vietnam and the Persian Gulf. The Veteran is currently diagnosed as having chronic inflammatory demyelinating polyneuropathy (CIDP). As noted above, the Board remanded the Veteran's claim in June 2011 for further evidentiary development-including a new VA examination and attempts to retrieve outstanding treatment records. In addition to opining as to direct service connection, as well as service connection based on exposure to Agent Orange and/or due to an undiagnosed illness, the examiner was asked to synthesize the competing medical nexus opinions contained in the claims file, address the multiple myeloma concerns suggested by the Medical University of South Carolina, and address the 1994 indication of muscle wasting. In July 2011, the Veteran's claims file was forwarded to a VA examiner to provide the requisite opinions requested in the June 2011 remand. Although the July 2011 VA examiner provided a detailed description and rationale for his opinions related to service connection based upon exposure to Agent Orange and Persian Gulf service, the examiner did not provide a detailed rationale for his negative nexus opinion with respect to direct service connection. Importantly, the examiner also did not address the competing medical nexus opinions, multiple myeloma concerns, or indications of muscle wasting as specifically requested in the June 2011 Board remand. The Board finds that there is noncompliance with its June 2011 remand instructions. As such, the Board finds that the Veteran's claim must be remanded again so that an adequate medical examination and opinion can be obtained. See Stegall, 11 Vet. App. at 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [VA has a responsibility to ensure that its examinations or opinions are adequate]. Additionally, since the June 2011 remand, the Veteran was awarded service connection for diabetes mellitus on a presumptive basis. This was done in an October 2012 rating decision, effective December 2010. In light of the award of service connection for diabetes mellitus and the Veteran's claimed peripheral neuropathy of the upper and lower extremities, the Board finds that the VA examiner should also be asked to provide an opinion as to whether the Veteran's CIDP is secondary (caused or aggravated by) his now-service connected diabetes mellitus. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should also send the Veteran a letter explaining, in terms of 38 U.S.C.A. § 5103 and § 5103A, the need for additional evidence regarding her claims of entitlement to service-connection for CIDP and on both (1) a direct basis and (2) a secondary basis. This letter must inform the Veteran about the information and evidence that is necessary to substantiate the claims, in terms of 38 C.F.R. §§ 3.303 and 3.310, and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. 2. The RO/AMC should schedule the Veteran for a VA peripheral nerves examination, to be performed by a neurologist, for an opinion as to whether it is at least as likely as not (50 percent probability or greater) that his claimed upper and lower extremity peripheral neuropathy disabilities were: (1) incurred as a result of any established event, injury, or disease during active service, (2) are due to herbicide exposure in Vietnam, or (3) are due to service in the Persian Gulf. In addition, the examiner is asked to address the following questions with respect to secondary service connection: (1) Is it as likely as not that the Veteran's CIDP was caused by his service-connected diabetes mellitus? (2) Is it as likely as not that the Veteran's CIDP disability was aggravated beyond its normal progression by his service-connected diabetes mellitus? The examiner is informed that "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. Prior to the examination, the claims folder, including any pertinent evidence in Virtual VA, and a copy of this remand must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, a review of any applicable medical literature, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. A copy of the Peripheral Nerves Disability Examination Worksheet should be provided to the examiner in prior to the examination. The examiner should attempt to synthesize the conflicting nexus opinions contained in the claims file, address the multiple myeloma concerns suggested by the Medical University of South Carolina, and address the 1994 indication of muscle wasting. Again, the examiner is requested to provide the basis for all opinions reached. 3. In the interest of avoiding future remand, the RO/AMC should then review the examination report to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies in the examination report before readjudication of the Veteran's claim. 4. After completion of the above, and after undertaking any additional development which it deems to be necessary, the RO/AMC should readjudicate the Veteran's service-connection claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ DAVID L. WIGHT 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).