Citation Nr: 1312906 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-44 470 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to service connection for peripheral neuropathy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to June 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2009 rating decision in which the RO denied service connection for peripheral neuropathy. In December 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in September 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2010. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Board's review of the claims file reveals that additional RO action on the claim on appeal is warranted. The Veteran contends that his peripheral neuropathy was caused by exposure to herbicide in the Republic of Vietnam. A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In this case, service personnel records showed that the Veteran served in Vietnam from August 1967 to September 1968 and is therefore presumed to have been exposed to certain herbicide agents. Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). For the purposes of the presumption, acute and subacute peripheral neuropathy currently means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent but resolves within two years of the date of onset. Peripheral neuropathy must become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection. Service treatment records are silent for any symptoms, diagnoses, or treatment for peripheral neuropathy. The Veteran injured his left calf in a motorcycle accident in service and has been granted service connection for numbness of the posterior left popiteal fossa. Post-service VA treatment records showed that the Veteran was first diagnosed with peripheral neuropathy of the lower legs in February 2009. Therefore, as the disease did not manifest to a degree of 10 percent or more within one year of the last exposure, the presumption of service connection is not available. Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Of particular relevance to an analysis of medical evidence supporting such a nexus are factors such as whether a medical professional finds studies persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner. Id. at 124. Statistical analysis can be a factor to consider when assessing whether the totality of the evidence is sufficient to establish direct service connection, even when the statistical analysis alone would be insufficient to warrant adding a disease to the list of diseases for presumptive service connection. However, it cannot be the sole basis for a determination. A medical professional's opinion cannot be rejected simply because the opinion is based in part on statistical analysis. Rather, it is the total analysis provided by the medical professional that must be weighed and considered. Id.; see also Polovick v. Shinseki, 23 Vet. App. 48, 53 (2009). The only medical opinion of record that addresses a possible relationship between the Veteran's peripheral neuropathy and his presumed exposure to herbicide agents is an October 2010 notation by a VA primary care physician on a prescription form. The physician noted, "The veteran's peripheral neuropathy is most likely related to his exposure to Agent Orange while serving in Vietnam." The physician provided no explanation or basis for the opinion. She did not indicate whether the opinion was based on persuasive studies, whether there are other risk factors that might be the cause of the disease, or whether the disease manifested in an unusual manner in this Veteran that distinguishes his case from other subjects in statistical studies. Further, the outpatient treatment records refer generally to neuropathy of the lower extremities, but without a description of the current symptoms or whether the service-connected left calf numbness is included as a component of the disease. VA must provide a medical examination and opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Here, there is competent medical evidence of a current disability, presumed exposure to herbicides in service, and a medical opinion that briefly suggests a relationship of the disease to the events in service but is without a sufficient rationale to make a decision on the claim. Therefore, the Board concludes that a VA examination is necessary. Further, VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, the RO should request VA medical records pertaining to the veteran that are dated from September 2010 to the present. Bell v. Derwinski, 2 Vet. App. 611 (1992). Finally, while this matter is on remand, to ensure that all due process requirements are met, the RO should also give the Veteran another opportunity to present information and evidence pertinent to the claim on appeal notifying him that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to readjudicating the claim on appeal. The RO's readjudication of the claim should include consideration of all evidence added to the record since the RO's last adjudication of the claim. Accordingly, the case is REMANDED for the following action: 1. Request all records of VA medical care since September 2010. Follow the current procedures of 38 C.F.R. § 3.159 for obtaining records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter offering the opportunity to provide and additional information, and if necessary, authorization, to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Explain the type of evidence that is the Veteran's ultimate responsibility to submit. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. Schedule the Veteran for a VA examination for peripheral neuropathy by a physician. Provide the Veteran's claims file to the physician and request that the physician review the claims file, including the VA primary care physician's October 2010 opinion. Request that the physician evaluate the peripheral neuropathy and provide an opinion whether the disease is caused by exposure to herbicides in Vietnam, caused or aggravated by any other aspect of service, or caused or aggravated on a secondary basis by other service connected disabilities. Request that the physician also provide answers to the following questions: a. To what extent is the opinion based on statistical studies? If so, please cite the studies that support the opinion. b. How is the Veteran's specific history and presentation similar or dissimilar to those patients and veterans considered in the statistical studies? c. Are there other risk factors or causes that were considered and are more or less likely than exposure to herbicides? d. Did the Veteran's disease manifest itself in an unusual manner? 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and development deemed warranted, readjudicate the claim for compensation benefits, in light of all pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). 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). _________________________________________________ JENNIFER HWA Acting 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).