Citation Nr: 1326286 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-26 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 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 The Veteran asserts that service connection is warranted for peripheral neuropathy of the bilateral upper and lower extremities. Specifically, he argues that he began having relevant symptoms in about 1970. He also argues that service connection is warranted based on exposure to Agent Orange during service in Vietnam. In December 2009, the Veteran was afforded a VA examination, primarily for his claim for service connection for diabetes mellitus (in July 2010, the RO denied that claim; service connection is not currently in effect for diabetes mellitus). The examination report shows that the Veteran reported having numbness of his hands since 1970. He was noted to be on Gabapentin. The impressions noted that the Veteran does not have diabetes mellitus, and that he has peripheral neuropathy of the upper and lower extremities that was not due to diabetes mellitus. A QTC examination report, dated in May 2011, was apparently created in association with the Veteran's claim for a total disability rating based on individual unemployability. The report shows that the diagnoses included peripheral neuropathy of the bilateral upper and lower extremities. The examiner indicated that none of the Veteran's diagnosed conditions occurred during service, and he indicated that he was unable to specify the most likely etiology of this condition. In reviewing service-connection claims where a VA examination has been performed, the Board must make a determination as to whether the examination report is adequate to make a decision on the claim notwithstanding the fact that the Board may not have found the examination necessary in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Id. In this case, the Veteran has reported experiencing upper extremity symptoms since 1970. An April 2009 VA progress note shows that the examiner noted that the Veteran had neuropathy of his hands "which may be secondary to Agent Orange" that had caused him to lose a number of jobs. The Veteran has been diagnosed with conditions that include bilateral peripheral neuropathy of the upper and lower extremities. Given the foregoing, the nature of the evidence warrants obtaining an etiological opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4)(i) (2012). However, the December 2009 VA examination report does not include an etiological opinion. The May 2011 QTC examination report shows that the examiner indicated that none of the Veteran's diagnosed conditions occurred during service, however, an etiological opinion was not included. The QTC examiner indicated that he was unable to specify the most likely etiology of the claimed condition, but he did not explain why. Thus, the QTC report contains neither an etiological opinion, nor an explanation for the examiner's inability to provide an etiological opinion. See Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Jones v. Shinseki, 23 Vet. App. 382 (2010). Therefore, on remand, the Veteran should be scheduled for an examination, to include obtaining an etiological opinion. The appellant is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for an examination for his claimed peripheral neuropathy of the upper and lower extremities. The claims folder and a copy of this remand should be provided to the examiner for review in connection with the examination. The examiner must indicate whether or not the claims folder was reviewed. All indicated tests and studies deemed necessary should be conducted and clinical findings should be reported in detail. The examination report should reflect consideration of the Veteran's documented medical history, current complaints, and other assertions, etc. Based on a thorough review of the evidence of record and the physical examination findings, the examiner should provide an opinion with a rationale as to whether it is at least as likely as not (i.e., a 50 percent probability or better) that the Veteran has peripheral neuropathy of the upper and/or lower extremities, or any other neurological disorder of the upper or lower extremities, and, if so, whether each diagnosed neurological condition was caused by, or related to, his service, to include as due to exposure to Agent Orange during service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 2. The RO should ensure that the medical report requested above complies with this remand, especially with respect to the instructions to provide the requisite findings and opinion. If the report is insufficient, or if any requested action is not taken or is deficient, it should be returned to the examiner for corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After taking any further development deemed appropriate, the RO should re-adjudicate the issues on appeal. If either of the benefits is not granted, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ JONATHAN B. KRAMER 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).