Citation Nr: 1331424 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 10-31 873A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the right leg, to include as due to Agent Orange exposure. 2. Entitlement to service connection for peripheral neuropathy of the left leg, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Amy K. Hart, Attorney-at-law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from January 1965 to September 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for peripheral neuropathy of the right and left leg. In August 2011, the Veteran testified at a Videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims folder. 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 Additional development is necessary prior to final adjudication of this claim. The Veteran claims that he has peripheral neuropathy, due to Agent Orange exposure in Vietnam. He submitted a June 2010 neurologic consultation from T.B.D., MD indicating, in pertinent part, that it was his opinion that it is at least as likely as not that the Veteran's Agent Orange exposure in Vietnam was a contributing or causative factor of the development of his peripheral neuropathy. He also related that in connection with these findings, he performed a comprehensive general medical examination and a comprehensive neurological examination. Moreover, he stated he did detailed EMG testing of the right leg which showed interval progression of his sensory motor axonal peripheral neuropathy with no surprising findings seen. Dr. T.B.D. then submitted an addendum to his neurological consultation in August 2011. At that time, he attempted to give rationale to support his previous findings that it was at least as likely as not that exposure to Agent Orange in Vietnam played an etiological or contributing role to his neuropathy. In clarification, he stated that his rationale for these findings were based on the absence of any other explanation for the Veteran's development of peripheral neuropathy, his absence of risk factors for development of peripheral neuropathy, his lack of family history for peripheral neuropathy, and the known association of exposure to dioxins and the subsequent development of peripheral neuropathy. However, the EMG performed by Dr. T.B.D. is not associated with the claims folder. Additionally, he stated that he did extensive EMG testing of the Veteran's right leg, which does not explain findings related to his left leg. A September 2008 EMG performed by VA outpatient services in Tulsa, Oklahoma demonstrated findings consistent with early peripheral neuropathy. However, these findings represented abnormalities of the right lower extremity which could be seen in a peripheral neuropathy, a lumbosacral plexopathy, or sciatic neuropathy. The left extremity showed no evidence of radiculopathy, or plexopathy of the left lower extremity but did not discuss sciatic neuropathy. In any event, it is important to note that the Veteran has previously been denied service connection for a back disorder in November 2009. In connection with this claim, there was symptomatology indicative of neurological deficiencies. Although Dr. T.B.D. stated that there was no other explanation for the development of peripheral neuropathy, he did not report knowing of the Veteran's back complaints or the September 2008 VA EMG which clearly indicates that the findings could also be related to lumbosacral plexopathy or sciatic neuropathy. The probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Indeed, the Board finds that this opinion is inadequate as the examiner did not provide an adequate rationale for this determination in that he did not address the Veteran's back disorder relative to the peripheral neuropathy findings. Jones v. Shinseki, 23 Vet. App. 382 (2010) (before relying on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the review of the evidence). Moreover, it is important that any medical records, to include EMG testing results performed by Dr. T.B.D. are necessary to the determinations made in this claim. Therefore, in addition to any records Dr. T.B.D. may present, a VA examination should be obtained in connection with the claim. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any new medical evidence, from VA or otherwise, that may have come into existence since the time the claims file was last updated by the RO/AMC, specifically, after an appropriate release of information from the Veteran, private treatment records from Dr.T.B.D, to include his EMG findings of the right leg. 2. Schedule the Veteran for a VA neurology specialty examination to determine the nature and etiology of his claimed peripheral neuropathy of the left and right lower legs. The claims file and a copy of this remand must be made available to the examiner for review and the examiner must indicate in the examination report that this has been accomplished. All indicated studies, to include EMG/NCS of the left and right legs, should be performed. Thereafter, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's claimed left and/or right leg peripheral neuropathy are due to Agent Orange exposure and/or are related to his active duty service. All findings and conclusions requested should be set forth in a legible report. The examiner should address the Veteran's statements, the findings of Dr. T.B.D., the clinical findings such as EMG/NCS of both the right and left legs, and these findings in connection with his prior low back complaints and claim. Supporting rationale must be provided with the requested opinions. If the examiner cannot provide an opinion without resorting to mere speculation, such should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. Following completion of the above, the claims should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his attorney should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The claims should be returned to the Board as warranted. The Veteran 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). _________________________________________________ F. JUDGE FLOWERS 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).