Citation Nr: 20042769 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 19-18 749A DATE: June 24, 2020 REMANDED Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1962 to July 1967 and from June 1972 to October 1975, which included service in the Republic of Vietnam from August 1965 to September 1966. He had additional service in the United States Army Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision. In that rating decision, the Agency of Original Jurisdiction (AOJ) denied entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy. In a May 2018 notice of disagreement, the Veteran indicated that he wanted to appeal the denial of the claim for service connection for bilateral lower extremity peripheral neuropathy. In an April 2019 statement of the case (SOC), the AOJ included both the issues of entitlement to service connection for bilateral lower extremity peripheral neuropathy and entitlement to service connection for bilateral upper extremity peripheral neuropathy, despite the Veteran’s intent to limit the appeal in his May 2018 notice of disagreement. Thereafter, in May 2020, the AOJ issued a supplemental statement of the case (SSOC) that only included the claim for service connection for bilateral lower extremity peripheral neuropathy. In the SSOC, the AOJ noted that the April 2019 SOC erroneously included the claim for service connection for bilateral peripheral neuropathy. The Veteran has claimed that he has peripheral neuropathy of the lower extremities that is related to herbicide exposure in service. His military personnel records show that he served in the Republic of Vietnam during the Vietnam era, and he is therefore presumed to have been exposed during such service to certain herbicide agents, including Agent Orange. Although peripheral neuropathy is on the list of diseases that VA has associated with herbicide exposure at 38 C.F.R. § 3.309(e), 38 C.F.R. § 3.307(a)(6)(ii) requires that peripheral neuropathy 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 active service. Nevertheless, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303(d), 3.309(e); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Therefore, the Board finds that a VA medical opinion is needed to determine to nature and etiology of any bilateral lower extremity peripheral neuropathy that may be present. Further, in the Veteran’s July 2019 substantive appeal, he indicated that his private physician was currently treating him for peripheral neuropathy. However, private medical records have not been associated with the record. Thus, on remand, the AOJ should attempt to obtain these records. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers not already of record who have provided treatment for bilateral lower extremity peripheral neuropathy. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. A specific request should be made for any private treatment records from Dr. J.D.A. (initials used to protect privacy), as identified in the July 2019 VA Form 9. The AOJ should also request any outstanding VA treatment records. 2. After obtaining any outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of any peripheral neuropathy of the lower extremities that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including EMG studies. The examiner is requested to review all pertinent records associated with the claims file, including service treatment records, post-service medical records and the Veteran’s own assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should also note that the Veteran served in the Republic of Vietnam during the Vietnam Era. Thus, he is presumed to have been exposed to herbicide agents during service. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has peripheral neuropathy of any of the lower extremities that is causally or etiologically related to his military service, including exposure to herbicide agents therein (notwithstanding the fact that it may not be a presumed association). (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Osegueda, 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.