Citation Nr: 18158887 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-54 058 DATE: December 18, 2018 REMANDED 1. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. 2. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1974 to June 1978, and from November 1980 to November 1994. Entitlement to service connection for (1) left lower extremity peripheral neuropathy and (2) right lower extremity peripheral neuropathy are remanded. A review of the record discloses further development is needed with respect to the Veteran’s claims. A December 2015 VA medical record shows that a copper level and serum protein electrophoresis was ordered in reference to the Veteran’s neuropathy to determine the cause of neuropathy. The results of the ordered medical tests for the Veteran’s neuropathy are not associated with the record and the most recent VA medical records are from December 2015. A January 2013 VA medical record reflects that the Veteran called and stated that he continued to have neuropathy of the right foot and that he had been seeing his local medical doctor who informed him that he needed to see a neurologist. A February 2015 letter from a neurologist, Dr. M.P., was addressed to Dr. E.D., which is likely the Veteran’s local medical doctor who referred him. There are no further records from Dr. M.P. nor Dr. E.D. The record does not show that VA attempted to obtain these records and such records have not been associated with the claims file. The omission of potentially relevant records necessitates that the claim must be remanded for additional development. Thus, updated VA medical records must be obtained and an effort must be made to locate and associate the private local medical records referenced in January 2013, likely from Dr. E.D., and any records from Dr. M.P. with the Veteran’s claims file. Moreover, a VA medical opinion for the Veteran’s claimed disabilities was provided in March 2015 and an addendum medical opinion was provided in October 2015. In March 2015, the examiner provided the opinion that it is “less likely than not that the Veteran’s claimed condition of bilateral neuropathy of the lower extremities, as it relates to his service as a combat arms instructor and the private medical note submitted from the above examiner [Dr. M.P.] that relates the condition to service.” He provided the rationale that there is no documented medical evidence that the Veteran was exposed to any toxins accepted by the Department of Defense as related to peripheral neuropathy. The examiner added that there was no documented medical evidence that the Veteran was exposed to lead while on the firing range, that peripheral neuropathy is not a recognized presumptive condition and that a nexus to the claimed in-service exposure is not established. In October 2015, the examiner was asked to provide an addendum opinion for clarification. He was informed that the Veteran was a small arms specialist during his initial four years of active duty and a combat arms training and maintenance craftsman for the following 14 years of active service. The examiner was also instructed that the Veteran’s low level lead exposure due to working on fire range is considered probable and asked to provide an opinion as to whether it is at least likely or not that the Veteran’s low level lead exposure resulted in the claimed bilateral lower extremity neuropathy. The examiner provided the opinion that it is less likely as not that the Veteran’s claimed bilateral neuropathy of the lower extremities is caused by, or related to, his service as a combat arms instructor with exposure to lead. He provided the rationale that there is no documented medical evidence that the Veteran was exposed to any toxins including lead accepted by DOD a related to peripheral neuropathy. The examiner stated that there is no documented medical evidence that the Veteran was exposed to lead on the firing range and that the presence of lead on the firing range does not mean the Veteran was exposed to the same. The examiner specifically stated that his opinion will not change without input from DOD and if his medical opinion is not satisfactory to base the rating on the private medical opinion and Social Security Administration records. When VA undertakes to obtain an examination, it must ensure that the examination and opinion therein is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In review of the VA opinions provided in March 2015 and October 2015, the Board finds the opinions to be inadequate for adjudication purposes. The examiner’s rationale is based on a lack of presumptive exposure to lead on the firing range and that neuropathy is not a presumptive disability related to such exposure. The fact that the requirements of a presumptive regulation are not met does not, in and of itself, preclude a claimant from establishing service connection by way of proof of actual direct causation of a current disease by in-service exposure. In a September 2016 substantive appeal (VA Form 9), the Veteran asserted that his neuropathy was caused by working on the U.S. Air Force firing ranges. He added that a study by the National Academy of Sciences (2012) for the DOD showed “overwhelming evidence” that OSHA standards were inadequate to protect range personnel and that following tests, a non-VA neurologist, Dr. M.P., opined that it was “quite possibly” caused by service. Therefore, the Board finds that a new VA opinion must be provided to address the Veteran’s contentions, studies, and private medical opinion. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any outstanding private treatment records that he wishes VA to obtain, to include records from (1) his local medical doctor for treatment of his neuropathy referenced in a January 2013 VA medical record; (2) Dr. E.D. (if different from the local medical doctor referenced above); and (3) any neurologist including, Dr. M.P. After obtaining any necessary authorization forms from the Veteran, obtain any pertinent records identified, and associate them with the claims file. Any negative responses should be in writing and should be associated with the claims file. 2. Obtain VA treatment records from December 2015 and associate them with the claims file. 3. After the steps above have been completed, seek a qualified medical professional, other than the March 2015 and October 2015 VA examiner, to provide an opinion for the Veteran’s claimed bilateral lower extremity peripheral neuropathy. If the examiner finds that an examination is necessary, then schedule an examination. If an examination is scheduled, any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The VA examiner’s attention is drawn to the following: • The Veteran served on active duty from June 1974 to June 1978, and from November 1980 to November 1994. • The Veteran asserts that his bilateral peripheral neuropathy was caused by exposure to lead and other toxins during his years as a weapons instructor on U.S. Air Force firing ranges. See (1) VBMS entry with document type, “NOD,” receipt date 09/02/2015; (2) VBMS entry with document type, “Email Correspondence,” receipt date 10/05/2015; and (3) VBMS entry with document type, “Form 9,” receipt date 10/22/2016. • The Veteran’s military occupational specialty (MOS) in his first period of service was a small arms specialist and in his second period of service was combat arms training and maintenance craftsman. • Given the Veteran’s MOS, low level lead exposure due to working on the fire range is considered probable. • The Veteran’s September 1980 Report of Medical Examination for entrance to his second period of service included a normal clinical evaluation of “lower extremities.” In the accompanying Report of Medical History, he specifically denied a history of “cramps in your legs;” “lameness;” “trick or locked knee;” “foot trouble;” “neuritis” and “paralysis.” See VBMS entry with document type, “STRs – Medical,” receipt date 12/05/1994, on pages 43-46; • The Veteran’s May 1994 Report of Medical Examination for separation from his second period of service included a normal clinical evaluation of “lower extremities.” In the accompanying Report of Medical History, he specifically denied a history of “cramps in your legs;” “lameness;” “trick or locked knee;” “foot trouble;” and “neuritis.” See (1) VBMS entry with document type, “STRs – Medical,” receipt date 12/05/1994, on page 51; and (2) VBMS entry with document type, “STRs – Medical,” receipt date 12/05/1994, on page 2. • A December 2003 VA medical record reflects the Veteran’s complaints of left extremity tingling and pain without report of any symptoms of lower back pain. An assessment of peripheral neuropathy was given and an EMG to differentiate axonal versus demyelinating was scheduled. See VBMS entry with document type, “CAPRI,” receipt date 08/13/2014, on page 162. • A January 2004 VA neurology consultation provides an assessment of signs and symptoms most suggestive of a peripheral neuropathy of unknown etiology. See VBMS entry with document type, “CAPRI,” receipt date 08/13/2014, on pages 160-161. • Of record is the February 2004 VA neurology study / EMG. See VBMS entry with document type, “CAPRI,” receipt date 08/13/2014, on pages 152-155. • In a March 2004 VA consultation, the neurologist stated that mild left tibial neuropathy identified by NCS and EMG did not explain the degree of discomfort the Veteran was feeling. See VBMS entry with document type, “CAPRI,” receipt date 08/13/2014, on pages 151-152. • August 2011 medical records from the Veteran’s SSA records show that the Veteran’s back pain initiated in August 2011. The Veteran stated that he worked as a postal delivery person and felt a sharp pain when he jumped out of his truck one day. He reported no previous history of back problems but had significant neuropathy in both lower extremities since 2005. See VBMS entry with document type, “Medical Treatment Records – Furnished by SSA,” receipt date 09/14/2015, on pages 31-34. • Of record are March 2013 EMG results from VA, which were, “There is no electrophysiologic evidence of peripheral neuropathy, plexopathy or radiculopathy. The study is completely normal.” Bunions were found on each foot, otherwise x-rays were normal and the Veteran’s pain was not thought to be related to arthritis. See VBMS entry with document type, “CAPRI,” receipt date 08/13/2014, on pages 71-72. • A December 2014 VA medical record reflects that the Veteran’s neuropathy had no vascular cause, and extensive workup with neurology and podiatry had been performed, with “negative A1C, B12, TSH, ESR, RPR, B1, BG, MAG, SSA, SSB, heavy metals, EMG and neurol nl intact.” See VBMS entry with document type, “CAPRI,” receipt date 08/31/2016, on pages 19-22. • A December 2015 VA medical record shows that a copper level and serum protein electrophoresis was ordered to determine if it is the cause of neuropathy. See VBMS entry with document type, “CAPRI,” receipt date 08/31/2016, on pages 1-3. • Of record are the March 2015 VA opinion and October 2015 addendum opinion for the claimed bilateral lower extremity neuropathy. See (1) VBMS entry with document type, “C&P Examination,” receipt date 03/09/2015; and (2) VBMS entry with document type, “C&P Examination,” receipt date 10/16/2015 • Of record is the February 2015 report and opinion from a private neurologist, Dr. M.P., who stated “it is quite possible that [the Veteran’s] small fiber neuropathy is due to low level chronic exposure to lead, when he was in service and in close contact with ammunition.” See VBMS entry with document type entitled “Medical Treatment Record – Non-Government Facility,” received 03/03/2015. • Of record is a study “Potential Health Risks to Department of Defense Firing-Range Personnel from Recurrent Lead Exposure.” See (1) VBMS entry with document type entitled “Correspondence,” received 06/20/2014; and (2) VBMS entry with document type entitled “Correspondence,” received 06/20/2014, on page 32 (“altered peripheral sensory nerve function”). • Of record is an article “Human Health Risks from Lead Ammunition.” See VBMS entry with document type entitled “Web / HTML Documents,” received 10/05/2015. While the Board has provided some of the relevant facts above, an attempt has been made to obtain additional potentially relevant medical records which may have now been added to the file, the examiner is to review the entire record to include any newly associated records, examine the Veteran if determined necessary, and then answer the following questions: a) Does the Veteran currently have bilateral lower extremity peripheral neuropathy? b) It is at least as likely as not (50 percent probability or more) that bilateral lower extremity peripheral neuropathy had its onset in service? c) It is at least as likely as not (50 percent probability or more) that such disability is caused by or otherwise related to service, to specifically include any exposure to lead or other toxins as a weapons instructor in service? d) Please specifically address (1) the February 2015 report and opinion from a private neurologist, Dr. M.P; (2) the study “Potential Health Risks to DOD Firing-Range Personnel from Recurrent Lead Exposure;” and (3) the article “Human Health Risks from Lead Ammunition.” (Location of these records is described above). Please explain your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel