Citation Nr: 1632148 Decision Date: 08/12/16 Archive Date: 08/23/16 DOCKET NO. 14-24 954A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a skin disability. 2. Entitlement to service connection for nephrectomy, right kidney. 3. Entitlement to service connection for polyneuropathy, to include peripheral neuropathy, myelopathy, and amyotrophic lateral sclerosis (ALS). 4. Entitlement to service connection for depression. 5. Entitlement to special monthly compensation (SMC) based on housebound status and/or the need for aid and attendance. REPRESENTATION The Veteran is represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to May 1972. He served in Vietnam from May 1970 to April 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2012 and November 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Review of the evidence of record indicates the Veteran initially claimed service connection for no feeling in both legs. The medical evidence of record suggests the actual diagnosis for such condition is not completely clear, with diagnoses including polyneuropathy, peripheral neuropathy, myelopathy, and ALS being considered. Accordingly, the Board has recharacterized the claim as shown on the cover page to more accurately reflect the disability being claimed. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required REMAND The Board finds that additional development is needed for the issues on appeal. With respect to the claim for service connection for polyneuropathy and skin disability, the Veteran was provided VA examinations in January 2012. The examiners reviewed the Veteran's claims file, administered clinical testing, and provided diagnoses. The Veteran was diagnosed with psoriasis and polyneuropathy and myelopathy. The examiners did not, however, render opinions addressing the relationship between these disabilities and the Veteran's active duty, to include his exposure to herbicides in Vietnam. It appears that an opinion was obtained in March 2015 as to whether the Veteran's peripheral neuropathy was early onset for purposes of presumptive service connection, to which the VA reviewing physician responded in the negative. The Board also notes that a supplemental statement of the case was not provided following this review. In any event, an opinion on whether the Veteran's neuropathy is directly related to his service, to include herbicide exposure, was not provided. Similarly, no opinion has been obtained concerning the Veteran's claim for service connection for right nephrectomy, which the Veteran claims is due to exposure to herbicides in Vietnam. As such, the Board finds that a remand is required in order to obtain a medical opinion. The Veteran has also claimed service connection for ALS, which his neurologist at one time thought may be the cause of his neurological symptoms. However, the claims file does not include medical records actually confirming that diagnosis, and on the 2012 VA examination, the Veteran reported that while he was thought to have ALS syndrome he more recently had been seen by a neuromuscular specialist who diagnosed peripheral neuropathy. The claims file includes limited records from the Veteran's neurologist dated in 2011. It does not appear that records from the neuromuscular specialist have been associated with the claims file. Moreover, records from the Veteran's nephrectomy do not appear to be in the claims file. Such records should be requested following receipt of completed release forms from the Veteran. Additionally, as the Veteran contacted the RO in January 2015 and advised that he was unable to travel for a VA examination because he was in a nursing home, updated medical records would greatly assist in adjudicating the claims. Turning to the claim for depression, the November 2013 rating decision denied the claim and the RO issued a June 2014 statement of the case. Therein, the RO stated that this claim was being deferred pending a VA examination. In July 2014, the RO scheduled the Veteran for a VA examination, however, the Veteran failed to appear, and has indicated that he is not able to attend an examination. Thereafter, the RO did not issue a supplemental statement of the case. The Veteran's claim of entitlement to SMC based on housebound status and/or the need for aid and attendance is inextricably intertwined with the other claims being remanded herein. As such, the Board finds that a remand for contemporaneous adjudication is required. Finally, in May 2015 the Veteran's attorney indicated they were submitting their final brief at that time. However, no brief was received; only one paged was faxed and appears to be the cover letter. The Veteran's attorney is hereby advised that if a brief was intended to be submitted in addition to the cover page, it is not of record, and the attorney should resubmit it. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his claimed disabilities, to specifically include the providers/facilities that performed his nephrectomy, the neurologist and neuromuscular specialist who have treated him after 2011 for his neurological disorder, and any provider who has treated him for depression. After securing any necessary releases, the AOJ should request any relevant records identified that are not duplicates of those already contained in the claims file. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After the above has been completed to the extent possible and any records obtained have been associated with the claim file, send the claims file to a VA physician to obtain an opinion concerning the claims for service connection for psoriasis and right nephrectomy. Following review of the claims file, the physician is asked to provide an opinion as to whether the Veteran's diagnosed psoriasis and his nephrectomy are at least as likely as not (a 50 percent probability or greater) etiologically related to the Veteran's military service, to include his exposure to herbicides in Vietnam. The physician should explain the reasons for any conclusion reached. While the physician is free to cite to studies by the National Institute of Health or any medical treatises in rendering the opinion, the examiner's rationale cannot rely solely on the fact that VA has not included psoriasis or kidney disorders in the list of presumptive Agent Orange conditions. In other words, the Board needs an opinion as to the likelihood that this Veteran's psoriasis and nephrectomy, without regard to the conditions VA recognizes as being due to herbicides, are nevertheless at least as likely as not related to his exposure to herbicides in Vietnam. 3. Send the claims file to a VA neurologist to obtain an opinion concerning the Veteran's claims for service connection for neuropathy and ALS. Following review of the claims file, the neurologist should respond to the following questions: a. Does the record establish that the Veteran does, in fact, suffer from ALS? Please explain why or why not. b. If not, is it at least as likely as not that the Veteran's neurological disability (variously noted as polyneuropathy, peripheral neuropathy, and myelopathy) is etiologically related to the Veteran's military service, to include his exposure to herbicides in Vietnam. The physician should explain the reasons for any conclusion reached. The neurologist is advised that early onset peripheral neuropathy manifested within a year of last herbicide exposure is a disability recognized by VA as being due to Agent Orange exposure, but other forms of neuropathy are not. In providing the reasoning for any negative conclusion reached, the neurologist is free to cite to studies by the National Institute of Health or any medical treatises in rendering the opinion, but the rationale cannot rely solely on the fact that VA has not included late onset neuropathy in the list of presumptive Agent Orange conditions. In other words, the Board needs an opinion as to the likelihood that this Veteran's neurological disability, without regard to the conditions VA recognizes as being due to herbicides, is nevertheless at least as likely as not related to his exposure to herbicides in Vietnam. 3. After completing the above actions, and any other development deemed necessary, the claims must be re-adjudicated. If the benefits sought on appeal remain 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 Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ K. A. BANFIELD 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).