Citation Nr: A20004950 Decision Date: 04/09/20 Archive Date: 04/09/20 DOCKET NO. 190513-14494 DATE: April 9, 2020 REMANDED Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1968 to March 1970 to include service on the land mass of the Republic of Vietnam. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a February 2019 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). In a previous January 2018 Board decision, the Board denied the Veteran’s total disability rating based on individual unemployability and acknowledged the Veteran’s withdrawal of his claim seeking an increased evaluation for his posttraumatic stress disorder disability (PTSD). The RO’s February 2019 rating decision denied service connection for bilateral lower extremity peripheral neuropathy and bilateral upper extremity peripheral neuropathy. In May 2019 the Veteran selected the evidence submission lane without a Board hearing when he opted into the Appeals Modernization Act (AMA) review system by submitting a VA Form 10182 (Decision Review Request: Board (Notice of Disagreement)). Accordingly, the Board has considered the evidence submitted within the 90 days following that election. The bilateral upper extremity peripheral neuropathy claims were not included in the Notice of Disagreement. While the RO issued a rating decision for both the left and right upper extremity peripheral neuropathy disabilities, the Board has no jurisdiction over these claims, and they are not presently on appeal before the Board for further discussion. In that February 2019 rating decision, the AOJ found that new and relevant evidence had been received to reopen the left and right lower extremity peripheral neuropathy claims. This is a favorable finding and the Board will readjudicate the claims on the merits. Evidence was added to the claims file during a period of time when new evidence was not allowed. Therefore, the Board may not consider this evidence. 38 C.F.R. § 20.300. This submission includes private medical records related to the Veteran’s neuropathy. The Veteran is advised that he may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. REASONS FOR REMAND Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is remanded. Although the Board regrets the additional delay, a remand is warranted in this cast to correct a pre-decisional duty to assist error prior to the RO’s adjudication of these claims. The Veteran asserts that service connection is warranted for bilateral lower peripheral neuropathy due to his exposure to herbicide agents and other chemicals to include jet fuel in the Republic of Vietnam. As an initial matter, the Board notes that the Veteran served in the Republic of Vietnam during the Vietnam War era and is presumed to have been exposed to herbicides during that service. The Veteran described the symptoms starting 30 years before his 2018 medical evaluation. The Veteran has been diagnosed with meralgia paresthetic from 2014 and small fiber distal neuropathy since 2018. Accordingly, the first criterion for establishing service connection has been met. However, service connection is not warranted on a presumptive basis because the evidence does not show, that his nerve conditions of the lower extremities manifested to a degree of 10 percent or more within a year of the last date of exposure to herbicides, or within one year following discharge from service. In addition, there is no indication that the Veteran has been diagnosed with acute, sub-acute, or early onset peripheral neuropathy. Thus, service connection under the provisions of 38 C.F.R. § 3.309(a) and (e) is not warranted. The Veteran was afforded a VA examination for his upper and lower extremity nerve condition in July 2018. The examiner opined that the current nerve conditions were less likely than not caused by the claimed in-service injury, event or illness. For his rationale, the examiner reported his literature search confirmed that only early onset peripheral neuropathy is associated with Agent Orange exposure, and that there was insufficient documentation showing that the Veteran’s complaints began in service or shortly after discharge. However, the examiner failed to discuss the Veteran’s description of his actual exposure to chemicals nor does he address the Veteran’s lay statements providing a description of his experiences as a service member in combat, and the associated differences for how the Veteran’s lay statements can be considered. Although the Veteran’s arguments orbit around presumptive service connection, direct service connection was also not considered. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran has submitted statements arguing that a relationship exists between his two diagnosed neurological disorders and herbicide agent and other chemical exposures while on active duty and a VA examination should be scheduled to determine if his neurological disorders relating to his lower extremities are related to his military service, on a direct basis as well as secondary to herbicide agent or other chemical exposure. The matters are REMANDED for the following action: Obtain an addendum opinion regarding whether the Veteran’s bilateral lower extremity neuropathy is at least as likely as not (50 percent probability or greater) that peripheral neuropathy of the bilateral upper and/or lower extremities related to an in-service injury, event, or disease, to include conceded exposure to herbicides. The entire claims file must be made available to and reviewed by the examiner. If the VA examiner determines that an additional VA examination is required, the Veteran’s VA examination should be scheduled pursuant to procedures for incarcerated veterans (if the Veteran is still incarcerated), as necessary. See 38 U.S.C. § 5711; Bolton v. Brown, 8 Vet. App. 185, 191 (1995). (a) The examiner must consider evidence that the Veteran has submitted addressing the relationship between delayed onset peripheral neuropathy and herbicide agent exposure. (b) The examiner should also consider and address the Veteran’s statements regarding chemical exposures other than herbicide agents. (Continued on next page) (c) The examiner’s opinion must also address whether, in this Veteran’s particular case, there is a relationship between conceded exposure to herbicide agents or the Veteran’s description of other chemical exposure in Vietnam and this Veteran’s development of lower extremity neuropathy. The examiner should address both direct and secondary causation. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Allen M. Kerpan 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.