Citation Nr: 1613892 Decision Date: 04/05/16 Archive Date: 04/13/16 DOCKET NO. 13-22 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Roanoke, Virginia. This matter was previously before the Board in May 2015 when the Board denied the Veteran's claim. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In a February 2016 Order, the Court vacated the Board's May 2015 denial and remanded it for further action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The clinical evidence is inconsistent as to whether the Veteran has peripheral neuropathy. The Board finds that a VA examination is warranted to determine whether the Veteran has peripheral neuropathy, and if so, whether it is as likely as not that it is causally related to active service. In ascertaining the Veteran's situation, the clinician should consider the Veteran's clinical history, as well as current diagnostic testing. October 2000 private correspondence reflects that the Veteran had mild paresthesias involving his hands, and had been diagnosed with Raynaud's phenomena of the hands. He also was noted to have neck and shoulder discomfort which radiates to the hand, and weakness in both hands. He had a positive ANA. The doctor (Dr. R. Schlansky) opined, in pertinent, as follows: [The Veteran] is an interesting gentleman with Raynaud's phenomena and a positive ANA It is difficult at this point to say what his represents though certainly it may be a mild inflammatory rheumatic disease. He also appears to have chronic-neck pain, right ulnar neuropathy and left more so that right carpal tunnel syndrome, which I suspect are related to his occupation [as] a barber (i.e. secondary to overuse). . . . I began him on amitriptyline 10 milligrams at bedtime and Voltarin 75 milligrams twice a day I told him to stop Vioxx to which he has not responded. While the above deals with the Veteran's upper extremities, the Board finds it notably that the Veteran was noted to have a positive ANA, and Raynaud's disease, which may affect the lower extremities. The Board also finds it notable that at the time of his evaluation, there is no record of lower extremity complaints. The Board further finds that if the Veteran had complaints of the lower extremities in 2000 or in the years since service, it would have been reasonable for such to have been noted in the above record. A November 2001 private clinical record reflects that the Veteran had neck and mid back pain. An August 2003 VA record reflects that the Veteran was a new enrollee to the Harrisonburg clinic and was seen to establish as a primary care patient. The Veteran's major concern on that day was chronic neck and shoulder which was described as a burning sensation and which he was told was a problem at C4-5. He was noted to have carpal tunnel syndrome. His neuro evaluation was negative for weakness, numbness, and falls. He reported that the carpal tunnel causes his hands to go numb, particularly at night. The report is negative for complaints of the lower extremities. The Board finds that if the Veteran had numbness or other symptoms of the lower extremities, it would have been noted in the above clinical records. Thus, the Board finds that the Veteran is less than credible as to symptoms since service. A June 2005 VA treatment note indicates the Veteran reported back pain radiating down his right leg with tingling sensations in his right great toe. A neurologic exam was normal. Notably, when discussing his leg symptom, the Veteran indicated that it appeared to radiate to the back and was with regard to only one lower extremity. The Veteran's lower extremities were evaluated as normal in October 2005, February 2007, September 2008, and December 2009. October 2005, February 2007, September 2008, and December 2009 neurologic exams were also normal. A November 2010 VA primary care note indicates the Veteran complained of burning and numbness in his feet with a sensation that his feet were stuck to the floor. On evaluation, his lower extremities were evaluated as normal. A neurologic exam was normal. Neuropathy was assessed. A CT scan of the head was ordered, and a consultation for a neurological evaluation was considered. A January 2011 note indicates a CT scan of the head was normal. A March 2011 VA neurology consultation note indicates the Veteran complained of burning in his feet and a feeling of being stuck to the floor while walking. A March 2011 neurology consultation note indicates NCV and EMG studies were performed in March 2011, but the results were not provided. A June 2011 note indicates that the Veteran continued to complain of altered sensations in his feet. Peripheral nerve disease was assessed. The NCV was noted to have been performed, but the results were not provided. An August 2011 VA neurology outpatient note notes the Veteran complained of a burning sensation in the soles of his feet. The note indicates the consultation was requested because a prior neurological examination and NCV were normal and because the Veteran requested a second opinion. Peripheral neuropathy likely secondary to a B12 deficiency was assessed. The physician noted significant vibratory loss in the lower extremities was found on examination. A September 2011 VA neurology consultation note indicates NCS and EMG studies were normal. The EMG was specifically noted to be negative for generalized peripheral neuropathy. An August 2012 VA primary care note shows that the Veteran was assessed with peripheral neuropathy. The results of the prior neurological consultations were not noted. A September 2013 primary care note shows the Veteran complained of numbness and tingling on the bottom of his feet. The physician noted a 2011 EMG and NCV were normal. Leg tingling was assessed. At the July 2014 Board hearing, the Veteran testified he had a sensation of burning in his feet which traveled to his hips and hand. The Veteran's spouse seemingly speculated the burning sensation could be related to a groin injury the Veteran asserted he sustained in Vietnam. VA treatment records reflect that the Veteran has been assessed with peripheral neuropathy and that such has been linked to B12 deficiency, but such diagnoses were not confirmed by EMG and NCV testing. In fact, EMG results were specifically noted to be negative for generalized peripheral neuropathy. The above information should be considered, if pertinent, by the examining clinician. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify all providers from whom he has received treatment for his complaints of weakness, tingling, and/or numbness of the lower extremities, to include Dr. Steinour in Shippensburg, PA, and Dr. R. Schlansky in Carlisle, PA, and complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for each provider identified. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records, to include VA records from August 2003 to present. 2. After completion of the foregoing, schedule the Veteran for a VA examination to determine whether it is as likely as not that he has peripheral neuropathy. Diagnostic testing (e.g. EMG, NVC) should be performed. The examiner should consider the pertinent evidence of record, to include the conflicting diagnoses of whether the Veteran has peripheral neuropathy. The examiner should consider, if pertinent, the following: a.) October 2000 private clinical finding of Raynaud's phenomena of the hands, positive ANA, and possible mild inflammatory rheumatic disease; b.) November 2001 private record which reflects neck and mid back pain; c.) VA clinical records from August 2003 to present; d.) June 2005 VA treatment note which indicates the Veteran reported back pain radiating down his right leg with tingling sensations in his right great toe; e.) normal evaluations in October 2005, February 2007, September 2008, and December 2009; f.) the November 2010 VA record which reflects complaints of burning and numbness in his feet with a sensation that his feet were stuck to the floor, with normal evaluations; g.) the January 2011 normal CT scan results; h.) the March and June 2011 VA records and all NCV and EMG studies, if any; i.) the August 2011 VA record which notes that the Veteran's complaints are related to B12 deficiency j.) the September 2011 VA neurology consultation note which reflects that NCS and EMG studies were normal and negative for generalized peripheral neuropathy; k.) the August 2012 VA primary care note which reflects that the Veteran was assessed with peripheral neuropathy; l.) a September 2013 primary care note which reflects an assessment of leg tingling; and m.) the Veteran's occupation as a barber. The clinician should discuss the records which reflect a diagnosis of peripheral neuropathy as well as diagnostic testing and opine as to which is more probative (i.e. is it as likely as not that the Veteran would have peripheral neuropathy based on his subjective symptoms while still having normal diagnostic testing.) If the Veteran has peripheral neuropathy, the clinician should opine as to whether it is as likely as not that it is causally related to active service. The clinician should also opine as to the likely onset date based on clinical evidence. The clinician need not consider that the Veteran has had symptoms since service because the Board finds that there is no competent credible evidence of such. 3. Following completion of the above, readjudicate the issue on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration. The appellant 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). _________________________________________________ M.C. GRAHAM 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).