Citation Nr: 1612476 Decision Date: 03/28/16 Archive Date: 04/07/16 DOCKET NO. 11-09 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for neuropathy of the lower extremities. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to April 1966 and from January 1968 to February 1969, and had additional service in the Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). In May 2014, June 2015, and September 2015 the claim was remanded for additional development, which has not been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Reason for Remand: To obtain an etiology opinion. The Veteran claims he has neuropathy of the bilateral lower extremities due to exposure to Agent Orange while serving in Vietnam. The record establishes that he served in Vietnam. In July 2006, a private podiatrist stated that the previous month, the Veteran had presented with an "annoying" sensation of both feet. The Veteran indicated that the symptoms had been present for approximately one month. The diagnosis was peripheral neuropathy of unknown cause, although radiculopathy was not out of the question. In October 2008, S.L.K., M.D., stated he treated the Veteran who complained that "both my feet feel uncomfortable," and that the symptoms had been present for about two years. The impression was probable small fiber sensory neuropathy. Dr. S.L.K. noted that the electromyogram was intriguing in that the right posterior tibial motor response was slightly slow, raising the possibility of a sciatic neuropathy. He noted this would not fit the clinical picture of bilaterally symmetric sensory symptoms. In October 2013, M.G., M.D., saw the Veteran for cardiac re-evaluation, noted that he had been exposed to Agent Orange, and stated that such exposure is well known to have cardiovascular deleterious and neuropathy effects. The September 2014 VA examination report indicates a diagnosis of bilateral lower extremity peripheral neuropathy. It was noted the Veteran began to complain of numbness of both feet in 2005. In June 2015, the VA examiner who conducted the September 2014 examination concluded that the bilateral lower extremity sciatica was less likely than not incurred in or caused by service. The examiner explained that the sciatica did not fulfill the criteria for Agent Orange-induced peripheral neuropathy, noting that the onset of such neuropathy must start within a few weeks of exposure to Agent Orange and the neuropathy must resolve within 24 months from date of onset. The examiner indicated that neuropathy would not be considered related to Agent Orange exposure if these criteria are not met. In September 2015, the Board found this opinion inadequate for rating purposes because, as discussed below, the VA examiner applied legal criteria that have now been altered and did not address whether the Veteran's peripheral neuropathy is directly related to service (to include by virtue of exposure to herbicides therein) without application of presumptions. Per the Board's September 2015 remand, a VA examination was scheduled. In November 2015, the VA examiner provided a similar opinion, finding the Veteran's neuropathy did not fulfill the criteria for Agent Orange-induced peripheral neuropathy, noting that the onset of such neuropathy must start within a few weeks of exposure to Agent Orange and the neuropathy must resolve within 24 months from date of onset. When addressing direct service connection without consideration of the presumptions, the examiner did not consider the Veteran's lay statements. Her finding was based on the lack of medical evidence, finding no relationship between neuropathy and service because he did not seek treatment until 2006. The mere fact that there is no evidence of treatment is not a sufficient rationale for VA purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion). As discussed in September 2015, during the pendency of this claim VA amended its regulations regarding presumptive service connection for peripheral neuropathy associated with herbicide exposure. See 78 Fed. Reg. 54763-54766 (September 6, 2013) (final rule) (replacing the terms "acute and subacute" and "transient" peripheral neuropathy with "early-onset" peripheral neuropathy; removing the requirement under the former §§ 3.307(a)(6)(ii) and 3.309(e) that "acute and subacute" peripheral neuropathy appear within weeks or months after exposure; and removing the requirement that the condition resolve within two years of the date of onset in order for the herbicide presumption to apply). Under the amendments, peripheral neuropathy no longer needs to be transient, but it must still become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides to qualify for the presumption of service connection. Since, the November 2015 VA examiner applied legal criteria that have now been altered, the opinion is inadequate for rating purposes. Even if peripheral neuropathy does not meet the definition of "early-onset" peripheral neuropathy, a veteran can still establish service connection for such disability by showing it is directly related to service without the benefit of the presumptive provisions of 38 C.F.R. § 3.309(e). Since the November 2015 examiner did not consider the Veteran's lay statements regarding onset and based her finding on the lack of records showing treatment, the examination report is inadequate for rating purposes. See Nieves-Rodriguez, 22 Vet. App. at 295. The Board, therefore, must return this examination report as being inadequate for rating purposes. 38 C.F.R. § 4.2. See generally Hampton v. Gober, 10 Vet. App. 481 (1997) (VA examination which does not contain an express finding regarding a disability for which an examination was requested is not sufficient to satisfy the duty to assist). Accordingly, the case is REMANDED for the following action: 1. Ask the November 2015 VA examiner, or another physician with the appropriate expertise, to provide an addendum opinion addressing the etiology of the Veteran's lower extremity neurological disability. The examiner must be provided access to the claims file on Virtual VA and VBMS and indicate review of the claims file in the examination report. Upon review of the record, the consulting physician must provide opinions that respond to the following: (a) Please identify (by diagnosis) any neurological disability of the lower extremities. Does the Veteran have lower extremity peripheral neuropathy? Specifically, does he have an early-onset peripheral neuropathy? The examiner must be notified that VA amended the regulations regarding presumptive service connection for peripheral neuropathy associated with herbicide exposure. Under the amendments, peripheral neuropathy no longer needs to be transient, but it must still become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides to qualify for the presumption of service connection. (b) If "early onset" peripheral neuropathy is not diagnosed, please identify the likely etiology for any (and each) neurological disability of the lower extremities, and specifically opine whether it is at least as likely as not (50 percent or greater probability) that such disability is related to service, to include exposure to herbicides (without the use of legal presumptions)? When offering a rationale, please address the significance, if any, of the October 7, 2013 letter from Dr. M.G. noting that the Veteran "had exposure to Agent Orange which is well known to have cardiovascular deleterious effects, as well as, neuropathy." The term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. A rationale must be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history, his lay statements, and the relevant medical science as applicable to this claim. If an opinion cannot be rendered without resorting to speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder 2. Then, readjudicate the Veteran's claim on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case. Allow an appropriate period of time for response. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2015).