Citation Nr: 1756718 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 09-25 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for left-sided neuropathy (claimed as chronic neurological pain and numbness of the neck, left shoulder, and left lower extremity), to include as due to chemical exposure. (The issue of entitlement to service connection for a chronic sinus disorder, to include as due to in-service chemical exposure, is addressed in a separate appellate decision.) REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney-at-Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Counsel INTRODUCTION The Veteran served in the National Guard from June 1981 to June 1987, and from February 1991 to March 1994. His service included active duty for training (ACDUTRA) from September 3, 1981, to April 9, 1982; from April 25, 1991, to August 9, 1991; from August 13, 1991, to September 30, 1991; and from March 11, 1992, to March 20, 1992. He is service-connected for disabilities associated with these periods, which makes him a Veteran. 38 U.S.C. § 101(2), (22), (23), (24) (2012); 38 C.F.R. § 3.1(d), 3.6(a) (2017). The Veteran's service also included periods of inactive duty training (INACDUTRA). This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Service connection for left lower extremity neuropathy (claimed as numbness of the left neck, leg and foot due to exposure to TCP in aircraft hydraulic fluid) was denied therein. The Board remanded service connection for left-sided neuropathy for additional development in September 2011. In March 2011, the Veteran testified at a hearing conducted at the RO before a VLJ who has since retired. The VLJ who conducts a hearing on an appeal must participate in any decision made on it. 38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2017). The Board accordingly remanded this matter for a new hearing in October 2012. It was conducted later that same month by two VLJs (in light of reconsideration with respect to service connection for a chronic sinus disorder) at the RO. Consequently, this matter must be decided by a panel of three VLJs. 38 U.S.C. § 7102(a) (2012). An opportunity for a hearing before each VLJ of the panel must be provided. Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Veteran was offered the opportunity to testify at a hearing before a third VLJ, but he declined in May 2013. In August 2013, the Board remanded the matters of entitlement to service connection for neuropathy of the neck, for neuropathy of the left shoulder, and for neuropathy of the left lower extremity, each to include as due to airborne chemical exposure, for additional development. The Board denied service connection for left-sided neuropathy (claimed as chronic neurological pain and numbness of the neck, left shoulder, and left lower extremity due to in-service chemical exposure) in an August 2014 decision. The Veteran appealed that denial, and in November 2015, the United States Court of Appeals for Veterans Claims (Court) issued an Order granting a Joint Motion for Remand (JMR) filed by the Veteran's representative and counsel for VA earlier that month. This JMR called for the Board's decision to be vacated, and entitlement to service connection for left-sided neuropathy (claimed as chronic neurological pain and numbness of the neck, left shoulder, and left lower extremity due to in-service chemical exposure) to be remanded for readjudication. In April 2016, the Board remanded this matter for additional development pursuant to the terms of the JMR. Review of the Veteran's claims file at this time unfortunately reveals that readjudication cannot occur yet. Another REMAND for additional development by the RO, which here is the agency of original jurisdiction (AOJ), is warranted. The Veteran and his representative will be notified if any further action is required on their part. REMAND Compliance with the Court, to include the terms of a JMR, is mandatory. Forcier v. Nicholson, 19 Vet. App. 414 (2006). There further must be at least substantial compliance with the Board's remand directives. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The Board's April 2016 remand directives were crafted in response to the Court's November 2015 JMR. Not all of these directives have been completed, however. Updated treatment records were obtained. The Veteran also underwent a VA medical examination complete with opinion in June 2016. Yet the sole diagnosis of radiculopathy made was not supported by a fully reasoned explanation, to include discussion and reconciliation of previous medical evidence, as the Board instructed. The Veteran's conceded exposure to chemicals during his ACDUTRA and INACDUTRA service additionally was not discussed in explaining why the opinion was against service connection, despite the Board's instructions to do so. There similarly was no discussion of the medical treatise evidence submitted by the Veteran or his reports concerning onset of his symptoms and why he delayed seeking treatment for them. The RO appears to have recognized these deficiencies, inasmuch as a new VA medical examination and opinion were requested in early October 2017. These requests have not been fulfilled yet, however. In short, some of the additional development previously directed by the Board remains to be completed and currently is pending, and consequently the return of this matter to the Board was premature. The April 2016 remand directives thus are reiterated, subject to minimal alteration accounting for the completed development, to ensure compliance with them. Accordingly, a REMAND is directed for the following: 1. Make as many requests as necessary to obtain all outstanding pertinent VA treatment records dated from July 2016 to present. Also ask the Veteran, through his representative, either to submit any outstanding pertinent private treatment records or provide enough information to identify and locate any along with an authorization for their release to VA. If he does the latter, make an initial request with follow-up as necessary. Associate all records received with the electronic claims file. Notify the Veteran and his representative of any lack of success in obtaining requested records. 2. After completion of the above, arrange for the Veteran to undergo a VA medical examination by an examiner with appropriate expertise who has not previously been involved in this appeal. The examiner should review the electronic claims file, and document that he or she did so. The examiner also should document in the report an interview with the Veteran regarding his history, symptoms, and their impact on his work and activities of daily living. All necessary tests next shall be performed, the results of which should be set forth in the report. The examiner then should diagnose in the report any left-sided neuropathy, whether of the neck, left shoulder, left lower extremity, or otherwise, as well as any similar condition, whether myofascial or otherwise, manifested by the Veteran since around August 2007 (when he filed his claim) to present. Next, the examiner should opine in the report, for each diagnosis, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) related to the Veteran's conceded exposure to chemicals, to include aviation fuels, lubricants, sealants, solvents, and hydraulic fluids, during ACDUTRA and INACDUTRA service or to this service otherwise. The examiner should support each diagnosis and opinion by including in the report a fully reasoned explanation. Medical principles thus should be considered as they relate to the relevant medical and lay (non-medical) evidence. As such, the examiner should discuss and reconcile to the extent possible the findings, diagnoses, and opinions from the May 2008, November 2011, and June 2016 VA medical examinations as well as VA treatment records to include those dated in January 2010, October 2014, and April 2015. The examiner also should discuss the medical treatise evidence submitted by the Veteran, to include that concerning delayed onset of neuropathy symptoms, as well as his reports concerning onset of his symptoms and why he delayed seeking treatment for them. 3. Finally, readjudicate this matter. Issue a rating decision if the determination is favorable to the Veteran and a supplemental statement of the case (SSOC) if it is unfavorable to him. Place a copy of the rating decision or SSOC in the claims file, and provide a copy to the Veteran and his representative. Allow them time to respond to the SSOC before processing for return to the Board. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, for example, may impact the determination made. So may his failure to report for any scheduled VA medical examination. 38 C.F.R. § 3.655 (2017). The Veteran also is advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment. Indeed, all remands by the Board or the Court must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). (Continued on the next page) THOMAS H. O'SHAY MICHAEL J. SKALTSOUNIS Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C. § 7252 (2012). This remand is in the nature of a preliminary order and does not constitute a decision by the Board on the merits of this matter. 38 C.F.R. § 20.1100(b) (2017).