Citation Nr: 20021209 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 19-29 481 DATE: March 25, 2020 REMANDED Entitlement to service connection for peripheral neuropathy of the left upper extremity, right upper extremity, left lower extremity, and right lower extremity is remanded. REASONS FOR REMAND The Veteran had active service in the Marine Corps from January 1966 to January 1968. The Veteran, whose military occupational specialty was Rifleman, received a Purple Heart for wounds incurred during combat service in the Republic of Vietnam. Some discussion of the procedural history of the Veteran’s claims is warranted before addressing the reasons for the remand. A Department of Veterans Affairs (VA) Regional Office (RO or AOJ) received the Veteran’s claim for service connection for peripheral neuropathy of the left upper extremity, claimed as tingling in the left hand, on September 6, 2011. The RO construed the claim broadly to include claims of service connection for peripheral neuropathy of both the left and the right upper extremities. In an October 2013 rating decision, the RO denied service connection for peripheral neuropathy of both upper extremities, concluding that in-service events and current diagnoses had not been shown. In July 2014, the Veteran requested through his then-representative that the provisional rating decision be finalized. In an October 2014 rating decision, the RO denied the Veteran’s claims for service connection for peripheral neuropathy of both upper extremities, concluding that the Veteran did not have current diagnoses for peripheral neuropathy of either the left or the right upper extremity. In addition, the RO concluded that the initial onset of peripheral neuropathy of both upper extremities did not occur within one year of the Veteran’s separation from active service in January 1968. In an August 2015 rating decision, the RO stated that the Veteran’s claim for service connection for peripheral neuropathy was part of a targeted review following court orders in a line of cases involving Vietnam veterans. See 38 C.F.R. § 3.307(a)(6)(iii), 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d 1175 (N.D. Cal. 1999); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002). In undertaking the review, the RO expanded the Veteran’s claim to include not only peripheral neuropathy of both upper extremities but also peripheral neuropathy of both lower extremities. The RO denied entitlement to service connection on a presumptive basis for all four claims because the evidence of record did not show that peripheral neuropathy had onset within one year of the Veteran’s separation from active service. The Veteran timely initiated an appeal of the August 2015 rating decision by filing an April 2016 notice of disagreement. The RO issued a statement of the case in August 2019, and the Veteran perfected his appeal in, and perfected it by filing a timely Appeal to the Board, VA Form 9 in September 2019. The Board notes that the Veteran’s April 2016 notice of disagreement included a claim of entitlement to service connection for jaw damage secondary to a traumatic brain injury. The Veteran’s service connection claim for jaw damage was denied in an October 2014 rating decision, and the Veteran received notice of that rating decision in November 2014. The RO informed that Veteran in July 2016 correspondence that it could not accept his notice of disagreement with respect to his claim of service connection for jaw damage because the one-year period to appeal the October 2014 rating decision had elapsed. Therefore, that issue is not before the Board and will not be addressed further. 1. Entitlement to Service Connection for Peripheral Neuropathy of Both Upper Extremities and Both Lower Extremities The Board concludes that a remand is needed here for two reasons. First, VA’s duty to assist the Veteran, among other things, includes obtaining his VA treatment records. See 38 U.S.C. § 5103A. The file includes the Veteran’s VA treatment records as of late November 2012. If the Veteran has received treatment from a VA facility since then, records for that treatment should be obtained and associated with the Veteran’s claims file. See id. Second, VA’s duty to assist a veteran also includes providing a VA examination in certain circumstances. 38 U.S.C. § 5103A; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Those circumstances are present here. September 2011 VA treatment records document the Veteran’s complaints of tingling in his right and left hands. His service treatment records document complaints of numbness in the left arm in June 1967. The Veteran reported that he had a similar episode of numbness approximately a year earlier that lasted two-and-a half weeks. On physical examination, the Veteran had loss of sensation in his left arm and reduced muscle strength. His deep tendon reflexes were within normal limits bilaterally. The diagnosis was possible brachial plexus pressure damage. To date, the Veteran has not been afforded a VA examination to determine the nature and etiology of peripheral neuropathy of both upper extremities and whether it is related to his in-service tingling and numbness of the left upper extremity. The Board concludes that one is needed here given the Veteran’s complaints of numbness and the in-service experience of numbness in his left upper extremity on at least two occasions. A VA examination is also needed to determine whether there is an etiological relationship between the Veteran’s service-connected muscle group VIII disability of the left-arm due to a shrapnel wound incurred in the Republic of Vietnam. The Veteran’s claim includes complaints of nerve damage from that wound, and an opinion should be rendered as to whether his peripheral neuropathy of both upper extremities is secondary to it. Finally, the Veteran’s September 2011 claim identifies the date of onset of his symptoms as January 18, 1968. The Veteran is presumed to have been exposed to herbicide agents during his service in the Republic of Vietnam, see 38 C.F.R. § 3.307, and even if peripheral neuropathy did not onset within one year of his separation from active service, he may still be entitled to service connection on a direct basis. See 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, the Veteran should be afforded VA examinations to determine whether peripheral neuropathy of both upper extremities and peripheral neuropathy of both lower extremities, if diagnosed, are etiologically related to the Veteran’s presumed exposure to herbicide agents. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from November 2012 to present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any neurological disorder of the upper and lower extremities. The examiner must provide the following opinions: (a.) Identify/diagnose any neurological disorder of the upper and/or lower extremities that presently exists or has existed during the appeal period. The examiner should specify whether the criteria for a diagnosis of peripheral neuropathy have been met. If not, an explanation should be provided. (b.) Whether a neurological disorder of the left or right upper or lower extremity (peripheral neuropathy) is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s exposure to herbicide agents. (c.) Whether a neurological disorder of the left or right upper extremity (peripheral neuropathy) is at least as likely as not related to in-service complaints of left arm numbness in June 1967. (d.) Whether a neurological disorder of the left or right upper extremity (peripheral neuropathy) is least as likely as not was (i) caused or (ii) aggravated by a service connected disability, to the Veteran’s service-connected disability of muscle group VIII, non-dominant arm. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, Associate 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.