Citation Nr: 20038093 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 19-26 511 DATE: June 3, 2020 REMANDED Entitlement to service connection for neuropathy of the left leg, including as due to in-service exposure to Agent Orange (AO) is remanded. Entitlement to service connection for neuropathy of the right leg, including as due to in-service exposure to AO is remanded. REASONS FOR REMAND The Veteran had active service from March 1968 to January 1970, including service in the Republic of Vietnam (Vietnam). This case is before the Board of Veterans’ Appeals (Board) on appeal from a February 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for neuropathy of the left leg and neuropathy of the right leg. The Veteran’s notice of disagreement (NOD) was received in June 2018. The RO issued the statement of the case (SOC) in August 2019, and the Veteran’s VA Form 9, substantive appeal was received in August 2019. By way of history, private treatment records were received within one year of the February 2018 rating decision, in April 2018. The RO issued a subsequent rating decision in May 2018, characterizing the issue as whether new and material evidence was received such as to reopen the claim previously denied in the February 2018 rating decision. However, the February 2018 rating decision did not become final before the Veteran submitted the NOD in June 2018. Therefore, the issues before the Board are claims for service connection for left leg and right leg neuropathy, rather than a petition to reopen those claims based on the submission of new and material evidence. As so, the issues have been characterized as set forth on the cover page of this decision and are addressed as such throughout. 1. Entitlement to service connection for neuropathy of the left leg, including as due to in-service exposure to AO 2. Entitlement to service connection for neuropathy of the right leg, including as due to in-service exposure to AO The Veteran contends that he has neuropathy of the legs that is related to in-service exposure to herbicide agent, specifically AO, during service in Vietnam. The Veteran’s service personnel records reflect that he served on active duty in Vietnam during the Vietnam era. As such, he is presumed to have been exposed to tactical herbicides, including Agent Orange, during service. The record reflects that the Veteran has neuropathy of the bilateral legs. See, e.g. September 2017 VA primary care outpatient note; November 2017 VA podiatry outpatient note. Early onset peripheral neuropathy is entitled to presumptive service connection on the basis of exposure to herbicides in Vietnam. 38 C.F.R. § 3.309 (e). In order for the presumption to apply, the condition must have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during service. 38 C.F.R. § 3.307 (a)(6)(ii). Here, it is unclear whether the Veteran’s neuropathy is properly characterized as “early onset.” Accordingly, the issue becomes (i) whether the Veteran’s neuropathy can properly be considered “early onset;” and if so, whether it manifested to a compensable degree within one year of his herbicide exposure. To this end, the Veteran asserts that his neuropathy began within one year of his in-service AO exposure, and that as proof, he was treated for numbness in the feet at a VA hospital in 1970. See, e.g. Appellate Brief dated May 2020; see also Statement in Support of Claim dated August 2019. Furthermore, even if the Veteran is not entitled to service connection for the bilateral neuropathy of the legs on a presumptive basis, he is not precluded from establishing service connection based on a medical nexus between the disability and service (a direct basis), Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, the questions of (i) whether the Veteran’s neuropathy can properly be considered “early onset” and had its onset within one year of service and (ii) whether the neuropathy is directly related to in-service AO exposure, are complex medical issues which require further development. As the Veteran has not been afforded a VA examination for his neuropathy of the bilateral legs, a remand is necessary to obtain VA opinions as to those matters. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4). Furthermore, at a November 2017 VA podiatry outpatient visit the Veteran told his treating clinician that he had previously been seen at the clinic for neuropathy. The clinician noted that there were no records showing such treatment. As noted above, the Veteran reports that he was treated at a VA hospital in 1970 for numbness in his feet, but the record does not contain any such records. As so, further development is necessary to associate all pertinent medical treatment records with the file prior to further adjudication. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file, outstanding VA and, with appropriate authorization, any private treatment records identified by the Veteran as pertinent to his claims. This includes, but is not limited to, the reported VA hospital records from 1970 as well as any VA records showing treatment for neuropathy that have not yet been associated with the claims file. 2. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran’s bilateral neuropathy of the lower extremities. The claims file, including a copy of this remand and the Veteran’s lay statements as to the claimed onset and continuity of numbness in the legs, must be made available to the examiner for review, and the examiner should indicate that the claims folder was reviewed in connection with the examination. The examiner should conduct all tests deemed necessary. Then, the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or higher probability) that the neuropathy of the Veteran’s lower extremities manifested to a degree of at least 10 percent within one year of the Veteran’s presumed Agent Orange exposure in Vietnam (i.e. whether the neuropathy is considered “early onset” peripheral neuropathy) for purposes of establishing entitlement to presumptive service connection based on presumptive AO exposure. Even if the examiner finds that the Veteran’s neuropathy was not “early onset” as to the Veteran’s Vietnam service, the examiner should opine as to its likely onset and likely etiology to include whether it had its onset in, or is otherwise attributable to, the Veteran’s period of active service, to include his presumed in-service exposure to herbicides. (Continued on the next page)   The examiner must provide a complete rationale for each opinion expressed and conclusion reached. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.