Citation Nr: 1804666 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-06 328A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for peripheral neuropathy, right upper extremity, to include as secondary to service-connected type II diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy left upper extremity, to include as secondary to service-connected type II diabetes mellitus. 3. Entitlement to service connection for a skin disorder, including cysts on the neck, arms, back, and side of upper body, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Krunic, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1970 and August 1990 to August 1991 with additional service in the United States Air Force Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In an April 2015 decision, the Board reopened the claim of entitlement to service connection for cysts on the neck, arms, back, and side of the upper body, and the case was remanded for further development. In a March 2016 decision, the Board denied entitlement to service connection for a skin disorder and remanded the issues of service for peripheral neuropathy of the right and left upper extremities for further development. Subsequently, the Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In June 2017, the CAVC issued a memorandum decision that vacated the denial for service connection for a skin disorder and remanded the matter for adjudication. In addition, the Appeals Management Center (AMC) issued a June 2016 Supplemental Statement of the case (SSOC) regarding the remaining issues of entitlement to service connection for right and left upper extremity neuropathy. The case has since been returned to the Board for appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In the June 2017 memorandum decision, the Court determined that the Board failed to provide an adequate statement of reasons or bases for its conclusion that the Veteran's skin disorders were not related to his military service, to include exposure to herbicide agents. In particular, the Board erred in relying on the October 2015 VA examiner's medical opinion which was internally inconsistent and "failed to provide a rationale that corresponded to the Veteran's actual disability." In particular, the Court indicated that the VA examiner cited to irrelevant medical literature in support of her opinion. In light of the Court's June 2017 memorandum decision, the Board finds that an adequate VA medical opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Regarding the claims for service connection for peripheral neuropathy of the right and left upper extremities, the Board finds that a remand is warranted to obtain an updated VA examination and medical opinion. In that regard, based on the Board's review of the evidence of record, including the reports of examination associated with the claims file thus far, the Board finds that a new VA examination is warranted to determine whether the Veteran, in fact, has peripheral neuropathy of the right and left upper extremities and to obtain an opinion as to the etiology of the condition(s). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination with the appropriate specialist, other than the October 2015 examiner, to determine the nature and etiology of his peripheral neuropathy of the right and left upper extremities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, the July 2010 and October 2015 VA examination reports, as well as the May 2016 VA medical opinion. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all neurological disorders that may be present in the right and left upper extremities. For each disorder identified, the examiner should indicate whether the disorder at least as likely as not (50 percent probability or greater) is causally or etiologically related to his military service. The examiner should also state whether it is at least as likely as not it is at least as likely as not (a 50% or greater probability) that the disorder was caused by or permanently aggravated by his type II diabetes mellitus. The examiner should note that the Veteran is service-connected for peripheral neuropathy of the right and left lower extremities, as secondary to his service-connected type II diabetes mellitus. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. The Veteran should be afforded a VA examination with the appropriate specialist to determine the nature and etiology any skin disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, the October 2015 VA examination report, and the Veteran's lay assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The Veteran has asserted that his current skin disorders are related to his herbicide agent exposure. The examiner should note that the Veteran served in the Republic of Vietnam during the Vietnam Era. Thus, he is presumed to have been exposed to herbicide agents during service. The examiner should identify all current skin disorders present. If any previously diagnosed disorder is not found on examination, such as subcutaneous masses consistent with lipomas, the examiner should address whether it was misdiagnosed or has resolved. For each diagnosed skin disorder, the examiner should opine whether it is at least as likely as not (50 percent probability or more) that the disorder manifested in service or is casually or etiologically related to his service, to include exposure to herbicide agents during service (notwithstanding the fact that it may not be a presumed association). In rendering the opinion, the examiner should consider the Veteran's report of in-service skin symptoms since his return from Vietnam and the continuity of symptoms since service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing the above actions and any other development as necessary, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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 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). _________________________________________________ ANTHONY C. SCIRÉ, JR. 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) (2017).