Citation Nr: 1338926 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 11-09 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a neurological disorder of the bilateral lower extremities, to include as secondary to degenerative disc disease of the lumbar spine or, in the alternate, as a result of exposure to herbicides. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified before the undersigned during a Board hearing held in December 2012. A copy of the hearing transcript (Transcript) has been associated with the 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 In this case, the Veteran has claimed entitlement to service connection for a neurological disorder of the bilateral lower extremities, to include as secondary to degenerative disc disease of the lumbar spine or, in the alternate, as the result of exposure to herbicides. The United States Court of Appeals for Veterans Claims (Court) held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, such as organic diseases of the nervous system, may be presumed to have been incurred or aggravated during service if they became disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). With regard to the tertiary theory of entitlement in this case, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1974, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2013). Service in the Republic of Vietnam includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.313 (2013). If a veteran was exposed to a herbicide agent during active military, naval, or air service, diabetes mellitus shall be service-connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The Veteran in this case is legally-presumed to have been exposed to herbicide agents, to include Agent Orange. See 38 C.F.R. §§ 3.307(a)(6), 3.313. In cases such as these, the following diseases are deemed associated with herbicide exposure, under VA law: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus, type 2, Hodgkin's disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), Parkinson's disease, and ischemic heart disease. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii); 38 C.F.R. § 3.309. The Board notes that the Veteran testified in December 2012 that the front half of his feet were numb, tingly, and sensitive. He also noted pain in each leg. He testified that each of these symptoms has increased as his lumbar pain has increased. See Transcript, p. 4. Indeed, a VA outpatient report from May 2011 noted that he suffered from weakness in the bilateral lower extremities, and that he was followed by the neurology clinic for some time. On examination, there was no evidence of any foot drop or weakness in the left leg, though the right leg was not specifically addressed. Vibratory sensation was decreased at the foot and ankle level. These symptoms were attributed to a diagnosis of multiple sclerosis, and an opinion as to whether these issues were related to his service-connected disability of the lumbar spine, or to his period of active service, was not provided. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). On remand, the Board directs the RO/AMC to provide a VA neurologic examination so as to determine whether the Veteran has a currently-diagnosed bilateral leg disorder which was either related to his period of active service, or was caused by, or permanently aggravated beyond its normal progression by, his service-connected lumbar spine disability. The examiner must fully address each component of secondary service connection, and provide a complete rationale in support of that opinion, referencing all relevant medical principles and the fact pattern of this case. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with VCAA secondary service connection notice for his claim. 2. The RO/AMC shall associate with the Veteran's claims folder any VA treatment records dated from April 9, 2012 (the date following the Veteran's most recent VA treatment records in the Virtual VA electronic records system) through the present, to the extent available. If the records are not available, or if the search for the records yields a negative result, that fact should be clearly documented in the claims file. 3. Following adequate notice, as well as the procurement of the VA records noted in the preceding paragraph, the RO/AMC shall schedule a VA neurologic examination to assess the severity and etiology of the Veteran's claimed disorder of the bilateral lower extremities. The Veteran's claims folder must be made available to the examiner for review in conjunction with the examination. The examiner should specifically review, note, and discuss the Veteran's statements in support of his claim, as well as prior VA examinations of record. In consideration of these and any other evidence or factors deemed relevant, the examiner should address the following questions: A. Whether it is at least as likely as not that any current neurologic disorder of the bilateral lower extremities is etiologically-related to the Veteran's period of active duty service. B. Whether it is at least likely as not that any current neurologic disorder of the bilateral lower extremities was caused or aggravated by a service-connected disorder, to include degenerative disc disease of the lumbar spine. C. Whether the Veteran currently suffers from acute or subacute peripheral neuropathy. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Note: The requested opinion on aggravation should be premised on the baseline level of severity of the disorder before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the examiner's current findings. A complete rationale for the requested opinion, accompanied by supporting medical data and analysis, shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 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 that particular question. 4. After completing the above actions, and any other indicated development, the Veteran's claims must be re-adjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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. 2013). _________________________________________________ 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) (2013).