Citation Nr: 21061670 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 15-35 968 DATE: October 5, 2021 REMANDED Entitlement to service connection for peripheral neuropathy of the right lower extremity (RLE) is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity (LLE) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1968 to August 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). An August 2020 Board decision denied entitlement to service connection for RLE and LLE peripheral neuropathy. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). An Order of the Court, dated in April 2021, granted a Joint Motion for Remand (JMR), vacating the August 2020 Board decision with regard to the issues listed above and remanding the matters to the Board. 1. Entitlement to service connection for RLE peripheral neuropathy 2. Entitlement to service connection for LLE peripheral neuropathy To ensure that VA has met duty to assist, the Board finds that remand is necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Further, remand is necessary to ensure compliance with the Board's prior remand directives. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). First, remand is necessary to obtain outstanding treatment records as directed in the July 2019 Board remand. It is noted that an initial request was rejected, and VA was notified that the request "must be worked via the traditional process;" however, the evidence does not reflect that VA made further attempts to obtain records from St. Albans VA Medical Center (VAMC) or from Northport VAMC when an identical error was noted. Any VA treatment records are within VA's constructive possession and are considered potentially relevant to the issue on appeal. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board notes that, following the vacated August 2020 decision, medical records from both VAMCs were associated with the record. However, remand is necessary to ensure that the records are complete. Second, remand is necessary to obtain an addendum medical opinion. Here, although a June 2020 VA examination addendum opinion was obtained, it is inadequate because it (1) did not adequately address direct service connection and (2) provided no medical basis for disregarding Veteran's complaints of numbness and tingling dating back to the 1970s. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate."); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that it is adequate). In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from St. Albans VAMC for the period from March 2019 to the Present. All records/responses received must be associated with the claims file. 2. Obtain the Veteran's VA treatment records from Northport VAMC for the period from February 2012 to the Present. All records/responses received must be associated with the claims file. 3. Ask the Veteran to complete a VA Form 21-4142 for any non-VA providers seen for signs and symptoms of his peripheral neuropathy to include New York Neurology Associates, PC and South Nassau Communities Hospital. Make two requests for the authorized records from each identified provider/facility unless it is clear after the first request that a second request would be futile. 4. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's peripheral neuropathy of the bilateral lower extremities. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with peripheral neuropathy of the lower extremities. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician must opine on: Whether it is at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease, including in-service exposure to an herbicide agent. Consider the Veteran's theory that his BLE peripheral neuropathy is due to his herbicide agent exposure along with the May 2018 private medical opinion that he has "neuropathy secondary to Agent Orange in the Vietnam War." NOTE (1): The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the clinician must indicate this in the examination report and provide a rationale for that determination. NOTE (2): A negative medical opinion should not be predicated solely on the absence of documented complaints, findings, or diagnoses in service. 5. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Edwards 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.