Citation Nr: 1330987 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 11-14 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the upper extremities, to include as due to herbicide exposure. 2. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a August 2009 rating decision promulgated by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In September 2012, the Veteran and his spouse testified at a hearing before the undersigned; a transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND The Veteran alleges that his peripheral neuropathy of the upper and lower extremities is related to herbicide exposure during service. He testified that he first began having problems with his feet in the 1990s and that his hands had recently started hurting him. Board Hearing Tr. at 5, 10. I. Medical Opinion The National Personnel Records Center (NPRC) has verified that the Veteran served in the Republic of Vietnam from March 1970 to January 1971. Therefore, he is presumed to have been exposed during such service to certain herbicide agents, including Agent Orange. 38 C.F.R. § 3.307(a) (2013). Although early-onset peripheral neuropathy is a disease VA associates with herbicide exposure, the disease must become manifest to a compensable degree with one-year of exposure in order for service connection to be presumed. 38 C.F.R. § 3.307(a)(6)(ii); 38 C.F.R. § 3.309(e) (2013); 78 Fed. Reg. 54,763 (Sept. 6, 2013) (amending §§ 3.307(a)(6), 3.309(e) to include consideration of "early-onset" peripheral neuropathy rather than only "acute or subacute" peripheral neuropathy). Nevertheless, direct service connection may be established by evidence demonstrating that the disease was in fact "incurred" during service, to include as based on exposure to herbicides. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A September 2005 electrodiagnostic study from Kaiser Permanente (Kaiser) showed findings consistent with a mild sensory neuropathy in both lower extremities and right L5 radiculopathy. In February 2006, a physician noted that there was a "high likelihood that there was not an identifiable cause." Records from Kaiser also reflect that the Veteran had impaired fasting glucose, but was not in the diabetes range. In January 2011, VA diabetes mellitus and peripheral nerve examinations were conducted. It was noted that the Veteran had a history of one elevated fasting blood sugar, but that repeat testing consistent with diabetes was needed to make the diagnosis of diabetes. With respect to peripheral nerves, nerve conduction testing of the right hand and feet demonstrated findings of peripheral polyneuropathy "typical for the type seen in diabetes, deficiency states (B12, folate, thyroid), toxins (etoh, statins, etc.), dysproteinemias, etc." The examiner diagnosed the Veteran with mild bilateral polyneuropathy in his feet, right leg L5 lumbar radiculopathy, and mild right hand carpal tunnel syndrome. The examiner opined that these conditions were not caused or aggravated by the Veteran's service-connected Morton's neuroma of the right foot. The examiner discussed possible etiologies, noting that B12 and folate were normal, that the Veteran denied heavy alcohol use, and that he was not taking any statin-type medication. It was noted that testing for diabetes was not consistent with a diagnosis, but that the Veteran was found to have hyperglycemia in the past. Although the VA examiner provided an opinion as to whether the Veteran's peripheral neuropathy was caused or aggravated by his service-connected right foot neuroma, the examiner did not provide an opinion as to whether the claimed disability is etiologically related to his service, to include herbicide exposure therein. Significantly, nerve conduction testing was noted to be consistent with "toxins," among other things. In addition, the Board notes that diabetes mellitus, Type II, is a disease associated with herbicide exposure and although the Veteran has not been shown to meet the criteria for a diagnosis of diabetes, he has a history of impaired fasting glucose. It is unclear, however, whether a relationship exists between the Veteran's impaired fasting glucose and his peripheral neuropathy and, if so, whether his impaired fasting glucose is etiologically related to herbicide exposure in service. Since the Board is precluded from making an independent medical determination and the record does not contain adequate medical responses to the complex medical questions at issue, a further medical opinion is necessary. II. Medical Records The record reflects that the Veteran receives ongoing treatment at the Portland VA Medical Center (VAMC) and Kaiser. Currently, the claims file includes VA treatment records dated from October 2009 to December 2010. An August 2013 rating decision reflects that treatment records dated from October 2009 to December 2012 were associated with the Veteran's electronic folder in Virtual VA; however, this does not appear to be the case. There are no additional VA treatment records associated with the Veteran's electronic folder in either Virtual VA or the Veterans Benefits Management System (VBMS). On remand, all updated pertinent VA treatment records should be obtained. In addition, the claims file includes private treatment records from Kaiser dated from February 2000 to November 2008. As outstanding private treatment records from Kaiser may be pertinent to the Veteran's claims, he should be requested to provide VA Form 21-4142, Authorization and Consent to Release Information to VA, for any additional treatment records from Kaiser. Accordingly, the case is REMANDED for the following actions: 1. With any needed assistance from the Veteran, obtain all treatment records pertaining to his treatment of peripheral neuropathy with Kaiser Permanente from November 2008 to the present. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e) . 2. Obtain the Veteran's VA treatment records from the Portland VAMC from December 2010 to the present. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e) . 3. After the development requested in items 1 and 2 is completed, return the claims file to the VA examiner who conducted the January 2011 VA examinations (or another examiner if unavailable) for preparation of an addendum opinion. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's electronic folder) should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. For purposes of this request, the reviewing clinician should presume that the Veteran was exposed to herbicides, including Agent Orange, during service. The reviewing clinician should specifically address the following questions: A) Is it at least as likely as not (a 50 percent probability or greater), that the Veteran's peripheral neuropathy of the lower extremities is related to his service, to include exposure to herbicides/Agent Orange? In rendering this opinion, the reviewing clinician should consider and address whether any relationship exists between the Veteran's exposure to herbicides/Agent Orange, his impaired fasting glucose, and his peripheral neuropathy. B) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's right hand carpal tunnel syndrome is related to his service, to include exposure to herbicides/Agent Orange? In rendering this opinion, the reviewing clinician should consider and address whether any relationship exists between the Veteran's exposure to herbicides/Agent Orange, his impaired fasting glucose, and his right hand carpal tunnel syndrome. A report of the opinion should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide any of the requested opinions 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. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any of the benefits sought on appeal remain denied, in whole or in part, 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 matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims must be afforded expeditious treatment. The law requires that all claims 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. 2013). _________________________________________________ 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) (2013).