Citation Nr: 1511003 Decision Date: 03/16/15 Archive Date: 03/27/15 DOCKET NO. 03-29 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for peripheral neuropathy, alternatively claimed as polyneuropathy or chronic inflammatory demyelinating neuropathy, to include as to due to exposure to an herbicidal agent. 2. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain. 3. Entitlement to an effective date prior to June 5, 2007, for the initial grant of service connection for lumbosacral strain. 4. Whether a June 1, 1972 rating decision that denied service connection for a back disability contained clear and unmistakable error. REPRESENTATION The Veteran is represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to March 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. REMAND Peripheral Neuropathy, Alternative Claimed as Polyneuropathy or Chronic Inflammatory Demyelinating Neuropathy Effective September 6, 2013, VA amended the regulations concerning presumptive service connection for disabilities associated with exposure to certain herbicide agents. The amendments implement a decision by VA to clarify and expand the terminology regarding the presumption of service connection for peripheral neuropathy associated with exposure to certain herbicide agents and to ensure compliance with Nehmer v. U.S. Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal.). Specifically, in the National Academy of Sciences' (NAS) report Veterans and Agent Orange: Update 2010, NAS concluded that early onset peripheral neuropathy associated with herbicide exposure is not necessarily a transient condition. However, NAS also reaffirmed the conclusion that data did not suggest that exposure to herbicides led to the development of delayed-onset chronic peripheral neuropathy. Therefore, VA amended 38 C.F.R. §§ 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." Moreover, VA removed Note 2 under 38 C.F.R. § 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, but it no longer needs to be transient. During the pendency of this appeal, the Veteran has been provided several VA examinations, the most recent of which occurred in July 2014. None of these VA examinations addresses whether the Veteran's peripheral neuropathy, polyneuropathy, or chronic inflammatory demyelinating neuropathy is or is not consistent with "early-onset peripheral neuropathy" and, if so, to what degree such a disability was present within one year after his service discharge. Significantly, the Veteran asserts that lay observable symptoms have been present since 1972, even though a diagnosis was not rendered until 1980. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of inservice injury, but relied on the service treatment records to provide a negative opinion); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a veteran's statements are competent evidence of what comes to him/her through his/her senses). Consequently, the Board finds that a remand is required in order to obtain a supplemental opinion from the July 2014 VA examiner. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (holding that a remand may be required if the evidence of record contains insufficient information for evaluation purposes). Initial Rating for Lumbosacral Strain, Earlier Effective Date for the Initial Grant of Service Connection for Lumbosacral Strain, and Clear and Unmistakable Error in a June 1, 1972 Rating Decision In a September 2013 rating decision, service connection for lumbosacral strain was granted and an initial rating of 10 percent was assigned thereto, effective June 5, 2007. In an October 2013 notice of disagreement, the Veteran claimed (1) that an initial rating in excess of 10 percent for lumbosacral strain is warranted; and (2) that an effective date prior to June 5, 2007, for grant of service connection for lumbosacral strain is warranted. Additionally, in the October 2013 notice of disagreement, the Veteran asserted that a June 1, 1972 rating decision that denied service connection for a back disability contained clear and unmistakable error. Subsequently, the RO issued an October 2014 statement of the case wherein the issues of an increased initial rating for service-connected lumbosacral strain and an earlier effective date for the initial grant of service connection for lumbosacral strain were addressed. With respect to the claim that the June 1, 1972 rating decision contained clear and unmistakable error, the RO erroneously considered this issue in the October 2014 statement of the case as an aspect of the Veteran's claim of entitlement an earlier effective date for the initial grant of service connection for lumbosacral strain. A claim of entitlement to an earlier effective date is a wholly separate claim from a claim that a rating decision contains clear and unmistakable error. Consequently, the first (and only) time that the RO adjudicated the Veteran's claim that there was clear and unmistakable error in the June 1, 1972 rating decision that denied service connection for a back disability was in the October 2014 statement of the case. The Board finds that the October 2014 statement of the case is, effectively, a rating decision with respect to this issue. After the RO issued the October 2014 statement of the case, the Veteran submitted a November 2014 substantive appeal that, accordingly, the Board accepts as a timely notice of disagreement with respect to the issue of whether the June 1, 1972 rating decision that denied service connection for a back disability contained clear and unmistakable error. Given that a true statement of the case has not been issued concerning this issue, the Board finds that a remand is required. See Manlicon v. West, 12 Vet. App. 238 (1999). The Board finds that the issues of entitlement to an initial rating in excess of 10 percent for lumbosacral strain and an effective date prior to June 5, 2007, for the initial grant of service connection for lumbosacral strain, are inextricably intertwined with the issue of whether the June 1, 1972 rating decision that denied service connection for a back disability contains clear and unmistakable error. As such, the Board finds that remanding these claims is required for contemporaneous adjudication. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Accordingly, the case is remanded for the following action: 1. The RO must contact the July 2014 VA examiner or, if unavailable, an appropriate substitute, in order to obtain a supplemental opinion. Following review of the evidence of record in the form of electronic records, the examiner must provide an opinion as to whether the Veteran's peripheral neuropathy, polyneuropathy, and/or chronic inflammatory demyelinating neuropathy is considered "early-onset peripheral neuropathy" associated with his in-service exposure to an herbicidal agent. Additionally, in providing this opinion, the examiner must address the Veteran's statements/assertions in the record as to experiencing lay observable symptoms from the time of his service discharge until the first diagnosis in 1980. Further, if the examiner's diagnosis is "early-onset peripheral neuropathy," the examiner must also opine as to the severity of that disability throughout the first year after the Veteran's service discharge based on the evidence of record. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. The RO should issue the Veteran a statement of the case with respect to the claim that the June 1, 1971 rating decision that denied service connection for a back disability contains clear and unmistakable error. The RO must inform the Veteran that to vest jurisdiction over this issue with the Board, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2014). If the Veteran perfects an appeal, it must be certified to the Board for appellate review. 3. With respect to the issues of entitlement to service connection for peripheral neuropathy, alternatively claimed as polyneuropathy or chronic inflammatory demyelinating neuropathy, to include as to due to exposure to an herbicidal agent; entitlement to an initial rating in excess of 10 percent for lumbosacral strain; and entitlement to an effective date prior to June 5, 2007, for the initial grant of service connection for lumbosacral strain, once the above actions have been completed, the RO must re-adjudicate these claims, taking into consideration any newly acquired evidence. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his attorney. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).