Citation Nr: 21001481 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 18-28 400A DATE: January 8, 2021 REMANDED Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as due to exposure to herbicides, and/or as secondary to service-connected diabetes mellitus, type 2, or traumatic brain injury (TBI), is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to exposure to herbicides, and/or as secondary to service-connected diabetes mellitus, type 2, or TBI, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from August 1965 to August 1967. He had service in the Republic of Vietnam from January 1966 to October 1966. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from October 2013 and October 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Board remanded these claims for additional development. All issues are remanded. The Veteran seeks entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities and to a TDIU. He has asserted multiple theories of entitlement, to include that his neuropathy had an onset during service, is due to exposure to herbicides during service, or is proximately due to or aggravated by his service-connected diabetes mellitus, type 2 and/or TBI. These issues were remanded in February 2020 to obtain medical opinions. Medical opinions were obtained in April 2020. The examiner opined that it was less likely than not that the Veteran’s neuropathy was due to exposure to herbicides because the Veteran has a diagnosis of “hereditary sensory neuropathy.” The examiner also provided opinions that the Veteran’s neuropathy was not proximately due to or aggravated by his diabetes and indicated that the Veteran had an EMG in the past, wherein he was diagnosed with “idiopathic peripheral neuropathy.” The Veteran’s representative submitted arguments in December 2020, asserting that the Veteran does not have hereditary sensory neuropathy. The representative noted that the April 2020 examiner stated the Veteran was diagnosed with hereditary sensory neuropathy on April 2011 and October 2012; however, the representative argues that in April 2011 the Veteran was diagnosed with “peripheral sensorimotor length dependent axonal neuropathy” confirmed on EMG/NCS by Dr. V., and was not diagnosed with hereditary sensory neuropathy. The representative argues that there is no mention of hereditary sensory neuropathy in the Veteran’s VA treatment records or private treatment records. Continuing, the representative asserts that research on the diagnosis of peripheral sensorimotor length dependent axonal neuropathy indicates it is not hereditary, but often due to diabetes. The representative cited to multiple articles in the December 2020 statement and also argued that even if the neuropathy was hereditary, there is only a 50 percent chance of developing a hereditary form of neuropathy and the medical evidence of record shows that type 2 diabetes and obesity increases a person’s risk for certain hereditary neuropathies. The representative also noted that no genetic testing has been done nor any biopsies taken to diagnose hereditary neuropathy; the only testing completed was a nerve conduction test (EMG/NCS) and its results were peripheral sensorimotor length dependent axonal neuropathy. Finally, the representative argued that just because the Veteran has stated that his son has symptoms does not mean that his son has been diagnosed with neuropathy. VA General Counsel has indicated that there is a distinction under the law between a congenital or developmental “disease” and a congenital or developmental “defect” for service connection purposes. A “disease” considered by medical authorities to be of congenital, familial (or hereditary) origin by its very nature pre-exists claimants’ military service, but that service connection for such diseases could be granted only if manifestations of the disease in service constituted aggravation of the condition. See also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); but see VAOPGCPREC 67-90 (July 18, 1990) (finding that “service connection may be granted for hereditary diseases which either first manifest themselves during service or which pre-exist service and progress at an abnormally high rate during service.”). If the disorder is considered a congenital or hereditary “defect,” service connection may be granted for disability resulting from any superimposed disease or injury. 38 C.F.R. §§ 3.303 (c), 4.9 (2019); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). The Board finds the current medical evidence is unclear as to whether the Veteran has an acquired disorder, a hereditary defect, or a hereditary disease. Given the complex medical nature of the medical question at issue and controversy, the Board has determined that in accordance with 38 U.S.C. § 5109, a remand is required for VA to request an advisory medical opinion from an independent medical expert. While this case is in remand status, the Veteran’s representative is also free to obtain a medical opinion if he so desires. The matters are REMANDED for the following action: 1. The AMO should follow its established procedures for requesting an advisory opinion furnished by a medical school, university, clinic or medical institution (i.e., an independent medical expert who is not an employee of the Department). 2. Pursuant to 38 U.S.C. § 5109, the file should be sent to a neurologist to offer an independent medical opinion. The entire claims file, including a copy of this remand, must be reviewed by the neurologist. After review of the following, please answer the following: a) Please clarify the Veteran’s diagnosis regarding his neuropathy of the bilateral upper and lower extremities. All current diagnoses should be noted in the report, to include, but not limited to, whether the Veteran has hereditary sensory neuropathy, idiopathic peripheral neuropathy, or peripheral sensorimotor length dependent axonal neuropathy. b) For each diagnosed neuropathy disorder, please indicate whether it is a hereditary defect, a hereditary disease, or an acquired disorder. The examiner is advised that for purposes of VA compensation, a defect is defined as a condition that is more or less stationary in nature, whereas a disease is defined as a condition capable of improving or deteriorating. c) If any current neuropathy disorder is a defect, was it subject to, or aggravated by, a superimposed disease or injury during service which resulted in an additional disability? If so, please identify the additional disability. d) In contrast, if any current neuropathy disorder is a disease or an acquired disorder, please state whether it clearly and unmistakably both (i) preexisted the Veteran’s entry into active service, and (ii) was not aggravated beyond the normal progress of the disorder during or as a result of active service (i.e., that it clearly and unmistakably did not increase or that any increase was clearly and unmistakably due to the natural progress of the disease)? If the current neuropathy disorder did not clearly and unmistakably pre-exist the Veteran’s service, is it at least as likely as not (probability of 50 percent or more) that any such neuropathy disorder had an onset during service, or is otherwise related to service, including any incident thereof, or exposure to herbicides? e) If it is determined the Veteran’s neuropathy disorder did not have an onset during service or is not causally or etiologically related to service in any way, to include exposure to herbicides, please opine whether each diagnosed neuropathy disorder is at least as likely as not (probability of 50 percent or more) proximately due to or aggravated (beyond a natural progression) by his service-connected diabetes mellitus, type 2 and/or TBI. *The examiner is asked to specifically consider and discuss: the arguments asserted in December 2020 that the Veteran does not have hereditary neuropathy; the Veteran’s lay statements that he began experiencing neuropathy symptoms in approximately 1970; the medical opinions of record linking the Veteran’s peripheral neuropathy to his exposure to herbicides, diabetes mellitus, type 2, or TBI. See, e.g., February 2012 opinion from Dr. I.; November 2012 opinion from Dr. S.; April 2014 private treatment note indicating peripheral neuropathy secondary to herbicide exposure; March 2015 private treatment note diagnosing peripheral neuropathy secondary to diabetes mellitus, type 2; December 2016 and November 2017 opinions from Dr. S. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran’s medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.