Citation Nr: 1328079 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 03-12 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for peripheral neuropathy, to include as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to June 1969, to include service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 1998 rating decision of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2009, the claim was remanded for additional development, to include an examination regarding the etiology of the claimed peripheral neuropathy. The claim has now been returned for additional appellate consideration. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." 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 claims that he has peripheral neuropathy which is directly related to service or due to exposure to Agent Orange. The Board notes that there is a presumption of service connection for acute or subacute peripheral neuropathy based on Agent Orange exposure. In addition to demonstrating service connection by way of a presumption, a Veteran may also show a direct link to service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Review of the record reflects that the Veteran has been incarcerated in Georgia in recent years. While attempts have been made to have him examined on numerous occasions (e.g., in 2009, 2010, 2011), he failed to appear. As it appears he was likely in prison on these occasions and because he has indicated in a May 2013 statement that he was released from prison in December 2012 and of his willingness to appear for an evaluation, the Board finds that an additional effort should be made to afford the Veteran an appropriate examination with respect to this claim. The fact remains that a medical opinion is still needed to assist in determining whether peripheral neuropathy is present, and, if so, whether such is due to active service, to include exposure to Agent Orange. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2012); and 38 C.F.R. § 3.159(c)(4) (2012). It is also noted that in the May 2013 statement, the Veteran notified the RO of a new address for the Veteran in Macon, Georgia. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should take appropriate steps to verify the Veteran's current mailing address. 2. The AMC/RO should send the Veteran all notification and development action required by the VCAA and ensure implementing VA regulations is completed, including the notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107. See also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 3. The AMC/RO should schedule the Veteran for a VA examination to determine the nature and etiology of his claimed peripheral neuropathy. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should be informed that the Veteran served in the Republic of Vietnam, and was exposed to Agent Orange, an herbicide containing dioxin, for which certain presumptions, as described in 38 C.F.R. §§ 3.307, 3.309, apply. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's peripheral neuropathy, if present, began during service or was otherwise caused by an injury or disease in service, to include exposure to Agent Orange. In formulating the above opinion, the examiner must acknowledge and comment on the significance, if any, of the Veteran's reports of peripheral neuropathy in the years since service. (It is noted that he initially reported peripheral neuropathy associated with inservice Agent Orange exposure in 1997.) The absence of evidence of treatment for peripheral neuropathy in the Veteran's service treatment records (STRs) cannot, standing alone, serve as the basis for a negative opinion. The examiner should clearly outline the rationale and discuss the medical principles involved for any opinions expressed. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 4. After completion of the above, the AMC/RO should readjudicate the claim. If any determination remains unfavorable to the veteran, he and his representative should be provided with a supplemental statement of the case (SSOC), and the Veteran should be afforded an opportunity to respond before the case is returned to the Board for further review. No action is required of the Veteran until he receives further notice. However, he is advised that failure to cooperate by reporting for examination without good cause may have adverse consequences on his claim. 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), 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).