Citation Nr: 1325260 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-11 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a neurological disorder, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and his father ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to April 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In September 2012, the Veteran, his spouse, and his father testified before the undersigned at Board hearing conducted at the RO. A transcript (Tr.) of the proceeding has been associated with the Veteran's claims file. The appeal is REMANDED to the Agency of Original Jurisdiction via the Appeals Management Center (AMC), in Washington, DC. REMAND The Veteran contends that he suffers from a neurological disorder, manifested by recurrent symptoms of involuntary shaking of the upper extremities, which was caused by his in-service exposure to the herbicide Agent Orange and therefore warrants service connection. Before the Board can adjudicate his claim on the merits, however, further development is required. The Veteran's symptoms have been found to support a current diagnosis of benign essential tremors. Moreover, his alleged in-service herbicide exposure has been conceded based upon his documented service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. See 38 C.F.R. § 3.307(a)(6)(iii) (2012). Accordingly, the Veteran's claim turns on whether his current neurological disorder was caused or aggravated by his presumed in-service herbicide exposure, or by any other aspect of his active service. In an effort to resolve this question, the Veteran underwent a February 2012 VA examination, which ruled out a diagnosis of Parkinson's disease, the disorder for which he had claimed entitlement to service connection on a presumptive basis due to herbicide exposure. See 38 C.F.R. § 3.309(e) (2012). By focusing almost exclusively on the claimed Parkinson's disease, however, the February 2012 VA examiner did not squarely address whether the Veteran's current diagnosis of benign essential tremors was attributable to his in-service herbicide exposure. Instead, the examiner merely indicated that the "claimed condition was less likely than not (less than 50 percent probability) caused by the claimed in-service injury, event, or illness," without offering any rationale for that opinion specific to the herbicide exposure theory, apart from explaining that the Veteran does not have Parkinson's disease. Given the above VA's examiner's omission of evidentiary findings that are crucial to resolving the claim, the Board considers his opinion to be inadequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes an examination, even if not required to do so, an adequate one must be produced). As such, the Board has no choice but to remand for an adequate response to the pertinent medical question raised in this appeal. Accordingly, the case is REMANDED for the following actions: 1. Request a records review and medical opinion from the examiner who completed the February 2012 examination (or another examiner if the February 2012 examiner is unavailable). The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. If the reviewing clinician determines that a physical examination is necessary, then one must be scheduled. The reviewing clinician should specifically respond to the following question: Is it at least as likely as not (50 percent or greater) that the Veteran's current benign essential tremors are related to his in-service herbicide exposure? In answering this question, the examiner is directed to presume that the Veteran was exposed to the herbicide Agent Orange in service. A report of the clarifying opinion should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for the opinion rendered. If the reviewing clinician cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran 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 for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (2012). ______________________________________________ Donnie R. Hachey 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).