Citation Nr: 18119577 Decision Date: 07/18/18 Archive Date: 07/18/18 DOCKET NO. 15-11 308 DATE: July 18, 2018 REMANDED Entitlement to service connection for peripheral neuropathy, claimed as secondary to Agent Orange exposure is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from August 1969 to April 1971. He served in the Republic of Vietnam (RVN) from June 24, 1970 to April 13, 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. By that rating action, the RO, in part, denied service connection for peripheral neuropathy, to include as due to Agent Orange exposure. The Veteran appealed the October 2012 rating action and the RO’s determination therein to the Board. The Board notes that in a March 2015 Statement of the Case, the RO considered an additional issue (i.e., entitlement to an increased disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) for the period prior to November 10, 2013 and in excess of 70 percent therefrom)). In his substantive appeal the Veteran limited his appeal to the issue listed on the title page. Thus, the only issue that remains for appellate consideration is the one listed on the title page. First, a remand is required for issuance of a Supplemental Statement of the Case (SSOC) that addresses all evidence received since issuance of a July 2017 SSOC. When evidence is received after the transfer of a case to the Board, as is the case here, the Board will determine what action is required with respect to the additional evidence. 38 C.F.R. §§ 19.37 (b); 20/1304(c) (2017). Under 38 C.F.R. § 20.1304 (c), any pertinent evidence submitted following certification of an appeal to the Board must be referred to the AOJ for review, "unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral." 38 C.F.R. § 20.1304 (c). While the Board is cognizant that 38 U.S.C. § 7105 (e) (2012) provides an automatic waiver of initial Agency of Original Jurisdiction (AOJ) review if a veteran submits evidence to the AOJ or the Board with, or after submission of, a substantive appeal in cases where the substantive appeal was filed on or after February 2, 2013, such as here, see 38 U.S.C. § 7105 (e) (2012); see also VA Fast Letter 14-02 (May 2, 2014), the Board finds that an automatic waiver of jurisdiction cannot be applied in this case. Here, after the appeal was transferred to the Board in May 2016, pertinent evidence was received into the electronic record by VA and not from the Veteran himself, notably VA treatment records, dated from April 2015 to October 2016, and statements, prepared in August 2016 and authored by the Veteran’s spouse and son. Therefore, the provision of automatic waiver is not applicable in this case and remand for a SSOC is required. Id. Second, a remand is required for a VA examination. The Veteran seeks service connection for peripheral neuropathy secondary to Agent Orange exposure in the RVN. As the Veteran’s military personnel records confirm that he had served in the RVN from June 24, 1970 to April 13, 1971, his exposure to Agent Orange is presumed. 38 C.F.R. § 3.307(a)(6)(iii) (2017). Under applicable legal criteria, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e) (2017). Early-onset peripheral neuropathy is an Agent Orange-presumptive disorder. 38 C.F.R. § 3.309 (e) (2017). 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 another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In February 2015, a VA physician reviewed the Veteran’s claims file and reported that a diagnosis of peripheral neuropathy could not be identified. The VA physician further concluded, after a review of the record, to include the Veteran’s service treatment records (STRs), that there was no evidence of early onset peripheral neuropathy during his RVN service or within one year of his last date of entry (LDOE). (See February 2015 Agent Orange Peripheral Neuropathy Review Check List, dated and signed by a VA physician in February 2015 and received into the Veteran’s Legacy Content Manager Document (LCMD) electronic record on February 20, 2015)). Conversely, VA treatment records, dated from April 2015 to October 2016, disclose that the Veteran has been diagnosed as having peripheral nerve disease. (See VA treatment records, dated from April 2015 to October 2016, and received into the Veteran’s Veterans Benefits Management System (VBMS) electronic record on October 27, 2016)). The Board observes that the Veteran has not been provided a VA examination to determine the etiology of the diagnosed peripheral neuropathy to his period of military service, notably his confirmed AO exposure in the RVN. Upon remand, the Veteran should be afforded a VA examination to determine the nature and etiology of his diagnosed peripheral neuropathy disease including the possibility that it is due to his Agent Orange exposure in the RVN. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); Combee, supra. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate specialist for his diagnosed peripheral neuropathy disease. The record, including a complete copy of this remand, must be made available to the examiner for review, and the examiner must indicate in the examination report that the record was reviewed in conjunction with the examination, including for the history of this claimed disability. The examiner should respond to the following question: Is it at least as likely as not (a 50 percent or greater probability) that the diagnosed peripheral neuropathy disease was manifested during the Veteran's period of active service; manifested to a compensable degree within one year of his separation of service; or is otherwise causally related to his active service or any incident therein, including his presumed exposure to Agent Orange? The examiner is hereby advised that the Veteran’s exposure to Agent Orange in the RVN is presumed. The examiner should summarize the pertinent evidence of record. Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carole Kammel, Counsel