Citation Nr: 1320559 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-44 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for polyneuropathy of the bilateral upper extremities. 2. Entitlement to service connection for polyneuropathy of the bilateral lower extremities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from December 1971 through May 1982. He was also enlisted in the Missouri National Guard from September 1983 through December 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's claims for service connection for polyneuropathy of the bilateral upper and lower extremities. A timely Notice of Disagreement (NOD) limited to those issues was received in May 2009. After a Statement of the Case was issued in October 2009, the Veteran perfected his appeal in November 2009, via VA Form 9 substantive appeal. 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 In his January 2008 claim, the Veteran alleges generally that he is entitled to service connection for neuropathies in his arms and legs, manifested by loss of concentration, tremors, nerve pain, and sensory loss in his arms, legs, and ankles. VA post-service treatment records dated from September 2007 through December 2009 reflect treatment for complaints of radiating symptoms in his arms and legs which were diagnosed as idiopathic polyneuropathy. These findings were confirmed during private nerve conduction studies performed in October 2008. Through statements received in February 2008 and April 2008, his NOD, and his substantive appeal, the Veteran has specifically alleged that the neuropathies in his extremities may be related to exposure to contaminants during trainings at Camp Crowder, Missouri. The Veteran's allegations are supported by a May 2009 buddy statement from R.D.S, who purportedly served with the Veteran at Camp Crowder. Additionally, the Veteran has provided a copy of a 2002 report of a site inspection performed at Camp Crowder, which indicates the possible presence of various contaminants. Camp Crowder has been, and continues to be, used as a training facility for the Missouri National Guard. Limited service personnel records in the claims file confirm that the Veteran was assigned to Camp Crowder for training in August 1985. The available personnel records also reflect that the Veteran was enlisted in the Missouri National Guard from September 1983 through December 1994, and, that he also had an unspecified period of enlistment in the Missouri National Guard during the late 1990's. Indeed, in a March 2008 statement, the Veteran reported periods of reserve service from 1995 through 1998. He does not, however, provide specific periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA); nor does he provide specific locations where his trainings took place. For service connection purposes, "Active military, naval, or air service" includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24) (2012); see Mercado-Martinez v. West, 11 Vet. App. 415 (1998); see also Paulson v. Brown, 7 Vet. App. 466, 469-70 (1995) (stating that an individual who has served only on active duty for training must establish a service-connected disability in order to achieve veteran status); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). In other words, when a claim is based on a period of ACDUTRA, there must be evidence that the individual concerned died or became disabled during the period of ACDUTRA as a result of a disease or injury incurred or aggravated in the line of duty. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service" and the claimant would not achieve veteran status for purposes of that claim. See 38 U.S.C.A. § 101 (2)-(24); Mercado-Martinez, 11 Vet. App. at 419. In view of the foregoing evidence and legal authority, the RO must make efforts to contact the VA Records Management Center; Army Human Resources Command in St. Louis; Enlisted Records and Evaluation Center at Ft. Benjamin Harrison, Indiana; the Veteran's National Guard unit; and/or any other appropriate agency or department to obtain the Veteran's complete National Guard service personnel and service treatment records. Specifically, the RO must request the Veteran's National Guard service personnel records which pertain to his periods of enlistment from 1983 through 1998. Such records should include information as to the Veteran's periods of ACDUTRA and INACDUTRA, locations where the periods of ACDUTRA and INACDUTRA took place, and the dates and locations of any foreign or domestic deployment during the Veteran's periods of enlistment in the National Guard. In connection with such efforts, the RO must follow the current procedures prescribed in 38 C.F.R. § 3.159 as it regards requests for records from Federal facilities. The Board also notes that the Veteran sustained various injuries following an in-service incident in September 1978 in which he was a pedestrian struck by a motor vehicle. Service treatment records dated April 1980 reflect that the Veteran was treated at that time for complaints of a right leg knot and accompanying pain which were apparently attributed to the September 1978 incident and diagnosed as varicose veins. Although the Veteran has not expressly alleged a relationship between his current neuropathies and either the September 1978 incident or the varicose veins diagnosed in April 1980, the Board acknowledges that it must review the evidence and address any theory of entitlement reasonably raised by the evidence of record. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (in direct appeals, all filings must be read in a liberal manner); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (Board must review all issues reasonably raised from a liberal reading of all documents in the record). Accordingly, the Board must also consider in this case whether the Veteran's current neuropathies may be attributable to injuries sustained in the September 1978 incident, to include the varicose veins diagnosed in April 1980. The Board also notes that the post-service VA treatment records indicate that the Veteran has also had a history of cervical and lumbar spine disc disease and bilateral carpal tunnel syndrome. Although service-connected is not in effect for these disorders, the Board notes that those disorders may also be causes for the neuropathies in the Veteran's upper and lower extremities. In October 2008, the Veteran was afforded a VA examination, performed by an urgent care physician's assistant, of his claimed neuropathies. The examiner confirmed the prior diagnoses of polyneuropathy; however, stated that an opinion as to the cause or origin of the polyneuropathy could not be given without resorting to speculation. At best, the examiner could opine, "some people will get idiopathic neuropathy." He did not, however, provide any information as to what other information or evidence was necessary in order to provide the requested opinion. Moreover, the examiner did not discuss the cause of the Veteran's neuropathies in the context of his in-service September 1978 accident, April 1980 in-service varicose vein diagnosis, apparent exposure to contaminants at Camp Crowder (as reported in the 2002 study), or his non-service-connected spine and carpal tunnel disorders. In the absence of such discussion, the October 2008 report is incomplete. In view of the foregoing, the Veteran should be arranged to undergo a new VA neurological examination, to be performed by a neurologist, to determine whether the polyneuropathy in the Veteran's upper and lower extremities were sustained during his active duty service; are related to an injury or illness sustained during his active duty service, to include his September 1978 accident and/or to the varicose veins diagnosed in April 1980; are related to exposure to contaminants during service at Camp Crowder; and/or are related to his non-service connected cervical spine, lumbar spine, and carpal tunnel disorders. 38 C.F.R. § 3.159(c)(4). Prior to requesting the examination ordered above, and in order to insure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any other private or VA treatment providers who have rendered treatment for his polyneuropathy since December 2009. VA must then make efforts to obtain any treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, that he may submit or identify any additional evidence regarding his claims of entitlement to service connection for polyneuropathy of the bilateral upper and lower extremities. This letter must also inform the Veteran about the type of information and evidence that is necessary to substantiate his claim 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. The letter must also notify the Veteran that VA is undertaking efforts to locate and obtain his complete service personnel records relating to his Missouri National Guard service and to arrange a new VA examination of his polyneuropathy. The Veteran should be advised that it is his responsibility to report for the scheduled VA examination and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim. The Veteran should also be provided a VA 21-4142 release form, and be requested to identify on the release the name(s) and address(es) of any private or VA medical providers who have provided treatment for his polyneuropathy since December 2009. 2. Contact the VA Records Management Center; Army Human Resources Command in St. Louis; Enlisted Records and Evaluation Center at Ft. Benjamin Harrison, Indiana; the Veteran's National Guard unit; and/or any other appropriate agency or department to obtain the Veteran's National Guard service personnel and service treatment records. Specifically, the RO must request the Veteran's National Guard service personnel records which pertain to his periods of enlistment from 1983 through 1998, and in particular, records as to the Veteran's exact periods of ACDUTRA and INACDUTRA, locations where the periods of ACDUTRA and INACDUTRA took place, and the dates and locations of any foreign or domestic deployment during the Veteran's periods of enlistment in the National Guard. Also, make efforts to obtain the records of any treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the above development has been completed to the extent possible, the Veteran should then be afforded a VA examination, with a neurologist, to determine the nature and etiology of the polyneuropathy in his upper and lower extremities. The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination. For purposes of this examination, the Board refers the examiner to the 2002 report of the site inspection of Camp Crowder and asks the examiner to assume that the Veteran was exposed to the contaminants noted therein. All tests and studies deemed necessary by the examiner should be performed. The examiner should provide a diagnosis pertinent to the claimed polyneuropathy. The examiner should also provide an opinion as to whether it is at least as likely as not (i.e. is at least a 50 percent probability) that any diagnosed disorders were initially sustained during the Veteran's active duty service; are related to an injury or illness sustained during service, to include his September 1978 accident and/or to the varicose veins diagnosed in April 1980; are related to exposure to contaminants during service at Camp Crowder; and/or are related to his non-service connected cervical spine, lumbar spine, and carpal tunnel disorders. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale which includes citation to any relevant facts, evidence, or medical principles must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to what additional information is necessary and why the opinion sought cannot be given without resorting to speculation. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the dates and times of the examinations sent to the Veteran by the pertinent VA medical facility. 5. After completion of the above development, the issues of the Veteran's entitlement to service connection for polyneuropathy of the bilateral upper and lower extremities should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. 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). _________________________________________________ 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).