Citation Nr: 1320209 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 05-29 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a neurological disability of the bilateral hands to include neuropathy, to include as secondary to herbicide exposure. 2. Entitlement to service connection for a neurological disability of the face to include neuropathy, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran had active service from April 1953 to March 1957, and from August 1957 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the VA Special Processing Unit (Tiger Team) at the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In a February 2009 decision, the Board denied all issues on appeal, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Through a February 2010 Court order, the Joint Motion for Remand filed by the Veteran's attorney and VA's Office of General Counsel (parties) was implemented, vacating the February 2009 decision and remanding the case back to the Board. In compliance with the terms of the Joint Motion, in November 2010 the Board remanded this case to the RO (via the Appeals Management Center (AMC)) for specified evidentiary development. In March 2012, the Board remanded this case again. In a February 2013 decision, the Board granted the claim of service connection for neuropathy of the bilateral legs, to include as secondary to herbicide exposure, which was effectuated in a February 2013 rating decision. The sole issues remaining on appeal before the Board are service connection for neurological disabilities of the bilateral hands and face, to include neuropathy, to include as secondary to herbicide exposure. Back in the March 2012 remand, and also in a February 2013 decision and remand, the Board mentioned that several issues had been raised by the Veteran's accredited representative but had not been addressed by the Agency of Original Jurisdiction (AOJ). The issues are service connection for hypertension as secondary to service-connected post-traumatic stress disorder (PTSD); and service connection for gastroesophageal reflux disorder (GERD), secondary to medications taken for service-connected ankle/knee problems. To date there is no indication from the record that these issues have been adjudicated by the AOJ. The Board does not have jurisdiction over these issues, and again they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of service connection for neurological disabilities of the bilateral hands and face, to include neuropathy, to include as secondary to herbicide exposure are REMANDED to the RO via the AMC. REMAND There has been a long delay in adjudication of the Veteran's claims on appeal and for that the Board apologizes. Regrettably though this case requires additional development. As mentioned in the Introduction, this case was last before the Board in February 2013 when in pertinent part it was remanded for additional development. The Board's requested development included scheduling the Veteran for a neurological examination to determine the nature and etiology of his claimed neurological disabilities of the face and hands. The examiner was requested to provide an opinion as to the likelihood that the neurological disabilities of the face and hands were related to the Veteran's military service, and also whether they were proximately due to or the result of or permanently aggravated by his service connected diabetes mellitus. It was requested that the examiner review the record prior to the examination and provide a complete rationale for all opinions expressed and conclusions reached. In March 2013, a VA medical examination of the peripheral nerves was performed. The VA physician examiner reported neurological findings and opined that the Veteran's facial and upper extremity numbness and tingling are not likely due to the service-connected diabetes mellitus. However, the examiner did not provide a medical nexus opinion concerning whether the Veteran's hand and face disabilities are directly related to his military service. Also, as has been acknowledged by the Veteran's accredited representative in a June 2013 written presentation, the examiner does not opine on the matter of aggravation of the hand and face disabilities by the service-connected diabetes mellitus as also requested in the Board remand. It is important to point out that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the Remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the Remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. The requested medical nexus opinions on whether the claimed disabilities are related to the Veteran's military service and/or aggravated by his service-connected diabetes mellitus are essential for proper disposition of his service connection claims. Regrettably as such, the Board finds that this case is not ready for appellate review and must be remanded for compliance with the Remand instructions. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for an appropriate VA compensation examination in order to determine the etiology of any current neurological disability of the face and bilateral hands. For completeness of the opinion, the examiner should review the claims file, including service treatment records and this remand, for the pertinent history of the claimed disabilities. The examiner should state when the onset of any neurological disabilities of the face and hands occurred. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current neurological disability of the face and bilateral hands, had its clinical onset during the Veteran's service or is caused by any in-service disease, event, or injury. The examiner should also provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current neurological disability of the face and bilateral hands is caused by or permanently aggravated by the Veteran's service-connected DM. If such aggravation is found present, the examiner should address the following medical issues: (1) The baseline manifestations of the Veteran's current neurological disability of the face and bilateral hands found present prior to aggravation; (2) The increased manifestations which, in the examiner's opinion, are proximately due to the service-connected DM disability based on medical considerations. It is most essential that the examiner or designee provide discussion of the underlying rationale of the opinion, if necessary citing to specific evidence in the file. The examiner should include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 2. Then readjudicate the remaining claims for service connection for neurological disabilities of the face and hands in light of this and any other additional evidence. If this remaining claimed continue to be denied, send the Veteran and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ K. PARAKKAL 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).