Citation Nr: 1331815 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 09-40 764 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for peripheral neuropathy, as due to exposure to herbicides. 2. Entitlement to service connection for tumors (to include non-malignant tumors), to include as soft tissue sarcoma, as due to exposure to herbicides. REPRESENTATION Appellant represented by: Marine Corps League WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active service from April 1969 to January 1971, with service in the Republic of Vietnam from September 1969 to September 1970. The Veteran is in receipt of the Combat Infantryman's Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that denied entitlement to service connection for peripheral neuropathy and soft tissue sarcoma. In June 2013, the Veteran was afforded a hearing conducted at the RO before the undersigned Veterans Law Judge. A copy of the transcript is of record. 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 has contended that he has peripheral neuropathy in his lower extremities and tumors throughout his body that are a result of exposure to herbicides in service. His service personnel records reflect that he had duty in Vietnam; as such, exposure to herbicides is conceded. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). VA has a duty to obtain records of treatment reported by a private physician. Massey v. Brown, 7 Vet. App. 204 (1994). At his hearing, the Veteran indicated that he underwent treatment at the VA in Cincinnati for "jungle rot" in his legs in the 1970's. These records are not part of the claims file. In addition, he has had several surgeries to remove tumors from his back and kidney. He testified that these surgeries have been performed at the VA. A January 2007 VA medical record shows that the Veteran has undergone surgeries including lipoma removal from his back and a kidney cyst removal. While the record includes VA medical records showing treatment from March 2002 to January 2013, the records of these surgeries are not part of the evidence. The Veteran has also reported that he underwent an Agent Orange examination through the VA. This report is not part of the evidence in the record. As such, on remand, these records should be obtained. November 2008 VA medical records show that the Veteran had a resection of T 5-6 arachnoid cyst by Dr. Zuccarello at UC Medical Center on November 14, 2008. This facility is not affiliated with VA, and these records are not in the claims file. On remand, the Veteran should be asked to identify any outside providers who have treated him for his claimed disabilities and to provide release forms in order to obtain the records. With regard to the Veteran's claim for entitlement to service connection for peripheral neuropathy, as a result of exposure to herbicides, the Board notes that acute and subacute peripheral neuropathy had been listed as a disease associated with exposure to certain herbicide agents. 38 C.F.R. § 3.309(e) (2013). Note 2 to this section defined the terms acute and subacute peripheral neuropathy as transient peripheral neuropathy that appeared within weeks or months of exposure to an herbicide agent, and resolved within two years of said exposure. 38 C.F.R. § 3.309 (e), Note 2. However, recently VA amended §§ 3.307(a)(6)(ii) and 3.309(e) by replacing the term "acute and subacute peripheral neuropathy" with the term "early-onset peripheral neuropathy." VA also removed Note 2 to § 3.309(e), which had required, in order for the presumption to apply, that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset. Under the amendments, peripheral neuropathy will still need to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection; however, it no longer needs to be transient. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon at 83. A Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon at 83. VA medical records reflect that the Veteran has been diagnosed with peripheral neuropathy of the lower extremities. See May 2006 VA medical records. The Veteran has testified that he began having symptoms of numbness and tingling in his legs shortly after returning home from Vietnam, and that these symptoms have been intermittent over the years since active duty. As such, the Board finds that he has met the criteria for a VA examination to determine if he has peripheral neuropathy that is a result of exposure to herbicides while on active duty. With regard to his claim for entitlement to service connection for tumors as a result of exposure to herbicides, after receipt of any additional records, an opinion should be obtained as to whether the Veteran's tumors are a result of exposure to herbicides in service. Accordingly, the case is REMANDED for the following action: 1. Obtain all records of treatment showing surgeries including lipoma removal from his back and a kidney cyst removal from the VA. 2. Take the necessary steps to obtain all private records pertaining to treatment of the Veteran's tumors/cysts, including from any medical providers at the UC Medical Center in November 2008, in accordance with 38 C.F.R. § 3.159. If additional information is needed to complete this request, the Veteran should be so advised of the specific information needed as well as any necessary medical releases. 3. Schedule the Veteran for a VA examination to determine the etiology of peripheral neuropathy of the lower extremities. All indicated tests and studies should be conducted. 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 take a complete history from the Veteran and determine whether peripheral neuropathy manifested to a compensable degree within one year of September 1970, when he returned from service in Vietnam. In this regard, the Board notes that a compensable rating is assigned for incomplete paralysis of the involved nerve, which indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve. A mild rating can be provided when the symptoms are only sensory. If the examiner finds that the Veteran's peripheral neuropathy did not manifest to a compensable degree during this time, 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 was caused by or is etiologically related to any incident of active duty to include exposure to herbicides. The examiner must address the Veteran's statements in his hearing regarding his duty on a helicopter spraying herbicides while in Vietnam and his subsequent treatment for skin problems on his legs. The examiner should also consider the Veteran's statements at his hearing that he began having symptoms of numbness and tingling soon after his return from service. The examiner must provide reasons for each opinion. 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 should provide a reason for doing so. 4. Schedule the Veteran for a VA examination to determine the etiology of tumors/cysts. All indicated tests and studies should be conducted. 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 determine if any of the tumors/cysts removed from the Veteran meet the diagnosis for soft-tissue sarcoma which, under the regulation, excludes osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma, but includes adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma, leiomyosarcoma, epithelioid leiomyosarcoma (malignant leiomyoblastoma), rhabdomyosarcoma, ectomesenchymoma, angiosarcoma (hemangiosarcoma and lymphangiosarcoma), proliferating (systemic) angioendotheliomatosis, malignant glomus tumor, malignant hemangiopericytoma, synovial sarcoma (malignant synovioma), malignant giant cell tumor of tendon sheath, malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas, malignant mesenchymoma, malignant granular cell tumor, alveolar soft part sarcoma, epithelioid sarcoma, clear cell sarcoma of tendons and aponeuroses, extraskeletal Ewing's sarcoma, congenital and infantile fibrosarcoma, and malignant ganglioneuroma. If not, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's tumors/cysts were caused by or are etiologically related to any incident of active duty, to include as due to exposure to herbicides. The examiner must provide reasons for each opinion. 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 should provide a reason for doing so. 5. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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). _________________________________________________ J.A. MARKEY 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).