Citation Nr: 20006198 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 14-39 033 DATE: January 24, 2020 REMANDED Entitlement to service connection for polyneuropathy, to include as due to herbicide exposure, and to include as secondary to service-connected diabetes mellitus, type II, is remanded. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as due to herbicide exposure, and to include as secondary to service-connected diabetes mellitus, type II, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1968 to June 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a January 2018 videoconference hearing. A transcript of this hearing is of record. In June 2018, the Board remanded the issues on appeal for additional development. As discussed below, there has not been substantial compliance with the June 2018 remand instructions, so the matters must be remanded. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to service connection for polyneuropathy, to include as due to herbicide exposure, and to include as secondary to service-connected diabetes mellitus, type II, is remanded. 2. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as due to herbicide exposure, and to include as secondary to service-connected diabetes mellitus, type II, is remanded. In the June 2018 remand, the Board instructed the RO to provide an opinion addressing whether the Veteran had any nerve disorder, to include polyneuropathy and bilateral lower extremity peripheral neuropathy, that was at least as likely as likely as not related to his active duty service, to include his presumed in-service herbicide agent exposure. The Board also asked the VA examiner to consider the Veteran’s lay statements regarding the onset of his symptoms during service and to comment on whether the Veteran’s report of having “cramps in your legs” in an April 1971 report of medical history was indicative of any signs or symptoms of a nerve disorder. In a March 2019 VA opinion, the VA examiner opined that the Veteran’s currently diagnosed bilateral lower extremity neuropathy and left upper neuropathy was less likely than not related to herbicide exposure. That determination was based on the finding that there was no evidence that the Veteran developed neuropathy within one year of exposure to the herbicide Agent Orange. The VA examiner generally cited to the scientific data found in the National Academy of Sciences report in 1993; however, no specific findings were discussed. For the following reasons, the Board finds that the March 2019 VA opinion did not substantially comply with the June 2018 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Although the March 2019 VA examiner found that the Veteran’s currently diagnosed nerve disorders were less likely than not related to herbicide exposure, the VA examiner’s rationale, in relying on the lack of evidence within one year of exposure, only addressed whether the Veteran was entitled to service connection on a presumptive basis. The Board finds that there was no clear opinion offered as to whether the Veteran’s currently diagnosed nerve disorders were directly caused by his in-service herbicide exposure. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Within the VA examiner’s opinion addressing whether the Veteran’s currently diagnosed nerve disorders were caused or aggravated by his service-connected diabetes mellitus, type II, the VA examiner noted that the Veteran had complained of legs cramps in 1971, which were diagnosed as physiologic leg cramps. The VA examiner stated that, “[i]f this was a prelude to neuropathy from agent orange there is no documented complaints of further symptoms of neuropathy beyond 1971 until 2011 so chronicity cannot be established.” Even if the Board could accept this statement as an opinion addressing direct causation for herbicide exposure, the Board notes that the correct legal standard governing service connection claims was not applied. Furthermore, when the VA examiner found that there were no documented complaints of further symptoms of neuropathy after 1971 until 2011, that finding ignored the VA examiner’s subsequent finding that the Veteran had reported symptoms of neuropathy in the 1980’s and 1990’s. The examiner must consider the Veteran’s lay statements regarding the onset and continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Because the March 2019 VA examiner did not apply the correct legal standard when addressing direct service connection and did not take into consideration the Veteran’s lay statements regarding the complete history of his symptoms, another remand is required to obtain a supplemental opinion that addresses whether the Veteran’s currently diagnosed bilateral lower extremity peripheral neuropathy and left upper neuropathy are caused by his in-service herbicide exposure on a direct basis. The matters are REMANDED for the following actions: 1. Obtain all the outstanding treatment records for the Veteran’s left upper neuropathy and bilateral lower extremity peripheral neuropathy that are not currently of record. 2. Obtain an addendum opinion from an appropriate examiner as to whether the Veteran’s currently diagnosed left upper neuropathy and bilateral lower extremity peripheral neuropathy are at least as likely as not related to his active duty service, to include his presumed in-service herbicide agent exposure. In providing the above opinion, the VA examiner should consider the Veteran’s lay statements regarding the onset of his symptoms during active duty service and comment on whether the Veteran’s report of having “cramps in your legs” in an April 1971 report of medical history was indicative of any signs or symptoms of a nerve disorder during his active duty service. The VA examiner should also consider the Veteran’s report of pain and numbness in his feet and left hand during the 1980’s and 1990’s. See March 2019 VA examination. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.