Citation Nr: 1333224 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 11-15 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for neuropathy of the lower extremities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Joseph Aquilina, Associate Counsel INTRODUCTION The Veteran had active military service from January 1966 to November 1967 to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that denied service connection for neuropathy of the lower extremities. The February 2010 decision also denied service connection for dermatitis. However, after receiving a statement of the case on the issues of service connection for neuropathy and dermatitis in March 2011, the Veteran filed a substantive appeal (VA Form 9) that was narrowly tailored to the neuropathy issue. He checked box B in section 9 and listed neuropathy of the lower extremities, which suggest a limited appeal. See Evans v. Shinseki, 25 Vet. App. 7 (2011) (interpreting responses to section 9 in completing a VA Form 9). His argument in section 10 was restricted to the lower extremities as well. As such, the issue of service connection for dermatitis is not deemed to be on appeal. 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 Board has reviewed the evidence of record and the development thus far undertaken with respect to the current claim for VA compensation for neuropathy. Due to current deficits in the record, which will be discussed in detail below, the Board finds that a remand is warranted to further develop the evidence. The Board regrets any delay in the timely adjudication of this claim that may result. The Veteran claims that he has been experiencing neuropathy in both of his feet since 1966. He contends that his neuropathy is peripheral neuropathy and that he should be granted service connection on a presumptive basis in light of his exposure to Agent Orange while in Vietnam. His exposure to herbicide agents (Agent Orange) is presumed based on the fact that he had active service in the Republic of Vietnam during the Vietnam error. The RO denied the Veteran's claim based on the finding that he did not exhibit symptoms of neuropathy within one year of exposure to herbicides as required for presumptive service connection under 38 C.F.R. 3.309(e). It was also noted that the Veteran had been diagnosed as having idiopathic neuropathy as opposed to peripheral neuropathy. However, contrary to the RO's finding, VA treatment records document diagnoses of peripheral neuropathy and peripheral nerve disease as well as idiopathic neuropathy. The Veteran was never afforded a VA examination of his nerves for purposes of service connection. In light of questions regarding to nature of the Veteran's neurological disorder, and its onset, the Board finds that a VA examination and etiology opinion is necessary in order to fairly decide the Veteran's claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The claims file also reflects that the Veteran receives treatment for his claimed neurological disorder from the Mountain Home VA Medical Center (VAMC). The claims file only includes treatment records from that provider dated from April 2003 to December 2012. Any additional records from that facility should thereby be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998). The AMC should obtain and associate with the claims file all outstanding VA records. Accordingly, the case is REMANDED for the following action: 1. The AMC should contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the Veteran for his claimed neurological disorder of the lower extremities since service discharge. Regardless as to whether he responds, obtain all VA clinical records from the Mountain Home VAMC since December 2012. 2. The Veteran will be provided a VA examination from an appropriate medical provider to determine the nature and etiology of his neuropathy of the lower extremities. All indicated tests and studies are to be performed. The claims file and a copy of this remand must be made available to and reviewed by the provider. Based on a review of the claims folder, examination and interview of the Veteran, and utilizing sound medical principles, the examiner is requested to provide an opinion as to whether the Veteran has peripheral neuropathy of the lower extremities. If a diagnosis of peripheral neuropathy is rendered, the examiner must also comment on the onset of the disorder, to include whether it became manifest to a degree of 10 percent or more within one year of the date of the Veteran's last exposure to herbicides. If peripheral neuropathy is not diagnosed or not found to have had its onset within one year the Veteran's last exposure to herbicides, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the neuropathy had its onset during active service or within a year of service discharge or is otherwise etiologically related to his active service, to include exposure to herbicide agents. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the provider is unable to render an opinion without resorting to speculation, the provider shall so state and submit reasons as to why only a speculative opinion can be rendered in light of the available evidence. 3. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC/RO should readjudicate the Veteran's claim. If the claim is denied, the AMC/RO should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order 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). _________________________________________________ MICHAEL A. HERMAN 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).