Citation Nr: 1632475 Decision Date: 08/16/16 Archive Date: 08/24/16 DOCKET NO. 13-13 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as a result of Agent Orange (herbicide) exposure. 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as a result of herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Costello, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1968 to September 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2012 rating decision of the Department of the Veteran Affairs (VA) Regional Office (RO). In April 2015, the Veteran testified in a hearing before the undersigned. A transcript of the hearing is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran avers service connection for bilateral peripheral neuropathy of the lower extremities, specifically, averring in his March 2013 notice of disagreement that he was exposed to Agent Orange during active duty service. He also avers during his April 2015 Board hearing that he first sought treatment for peripheral neuropathy in 2006. VA regulations provide that if a Veteran served on active duty in the Republic of Vietnam between January 9, 1962 and May 7, 1975 he is presumed to have been exposed to an herbicide agent unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). "Service in the Republic of Vietnam" includes service in the waters offshore and in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. In this case, the Veteran's DD 214 notes he served in Vietnam, and the Board concedes he qualifies for the presumption of exposure to herbicides, including Agent Orange. However, the Board notes that the mere exposure to herbicides alone does not create a permanent disability for which compensation may be granted. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service. 38 C.F.R. § 3.307(a)(6). This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307(a) (6), (e), 3.309(e). In Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). Service treatment records reflect the Veteran's October 1968 entrance examination found he had normal lower extremities, while his October 1968 report of medical history notes he had cramps in his legs. His July 1970 separation examination notes he had normal lower extremities, while again his July 1970 report of medical history notes he had cramps in his legs. Post-service private treatment records beginning in June 2007 note the Veteran stated his legs "seem to ache, throb, and cramp." He was diagnosed with peripheral polyneuropathy. In July 2013 the Veteran submitted a statement from Dr. A.J.L. that notes the Veteran was followed at the Grand Island VA and had been treated for his peripheral neuropathy. Dr. A.J.L. opined that the Veteran "has no clinic explainable disease process to explain, his neuropathy. Therefor it is more likely than not that his peripheral neuropathy is a result of his Agent Orange exposure he encountered while serving in the Army while on Active Duty." The Veteran was also afforded a VA examination of his low back in June 2016, in which the examiner found the Veteran's peripheral neuropathy of the lower extremities appeared less likely than not related to his low back disability. Although Dr. A.J.L. opined that it was more likely than not that the Veteran's peripheral neuropathy was a result of his Agent Orange exposure in-service, he offered no reasons or bases for attributing the Veteran's peripheral neuropathy to Agent Orange exposure in-service. In light of this evidence suggesting that the claimed disabilities might be related to service, a VA examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the record all VA treatment records since January 2016. 2. Then, schedule the Veteran for a VA examination to address the nature, symptoms, and etiology of his peripheral neuropathy of the lower extremities. The entire claims file, including electronic records, must be reviewed by the examiner in conjunction with the examination. Any necessary testing should be accomplished. After reviewing the record and performing any examination of the Veteran or diagnostic testing deemed necessary, the examiner should address the following: Whether it is at least as likely as not (50 percent probability or greater) that any current peripheral neuropathy of the lower extremities was incurred in or otherwise related to the Veteran's military service, including exposure to herbicide agents (e.g. Agent Orange). In answering this question, the examiner should note that it has been conceded that the Veteran was exposed to herbicide agents during his active service and complained of cramping in his legs in both his October 1968 and July 1970 reports of medical history. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any 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. 3. After completing the above and any other development deemed necessary, readjudicate the remanded issue. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. 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 2014). _________________________________________________ MICHELLE L. KANE 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).