Citation Nr: 21064297 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-46 014 DATE: October 19, 2021 REMANDED Entitlement to service connection for left lower extremity neuropathy, claimed as paralysis of the common peroneal nerve, and also specifically claimed as due to herbicide agent exposure, is remanded. Entitlement to service connection for right lower extremity neuropathy, claimed as paralysis of the common peroneal nerve, and also specifically claimed as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1966 to January 1970, with verified service in the Republic of Vietnam. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran is service connected for a lumbar spine degenerative disc disease and for lumbar radiculopathy of the left lower extremity only since October 20, 2011. See, e.g.: Rating Decision (Aug. 16, 2013). The claim on appeal originates from a new claim received on June 23, 2016. See VA Form 21-526EZ (rec'd June 23, 2016). Notably, the Veteran has continuously asserted that the new radiculopathy is not an increased rating, nor secondary to the preexisting radiculopathy, but distinctly and explicitly due to herbicide agent exposure. See VA Exam ( July 19, 2016 ), at Question No. 2a. On June 27, 2019, the Veteran's claim was remanded to develop the claim as both due to herbicide agent exposure and as secondary to the already-established neuropathy. See BVA Remand (June 27, 2019). On July 1, 2019, the Secretary of Veterans Affairs directed the Board of Veterans' Appeals (Board) to stay adjudication of all cases which may be affected by the Blue Water Navy Vietnam Veterans Act of 2019 (the Act), until the effective date of the Act, January 1, 2020. The Act created new statutory requirements for the adjudications of certain claims based on veterans' herbicide agent exposure in, among other places, the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, and in or near the Korean Demilitarized Zone during the period beginning on September 1, 1967 to August 31, 1971. The issue listed on the cover page of this decision was potentially affected by the Act and was subject to the stay described above. The stay having been lifted the issues are now ripe for adjudication. The Board notes that a March 2020 Memorandum conceded herbicide exposure based on the Veteran's nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019. After the above development as ordered by the remand, the Veteran was issued a Supplemental Statement of the Case (SSOC) on April 6, 2020. Unfortunately, the Board concludes that the Veteran has not yet been afforded substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As a result, the Board determines that a subsequent remand is required, for the Board is precluded from issuing a final determination as to the claims on appeal at this time. The Board sincerely regrets additional delay that may be incurred as a result. This appeal is advanced on the docket on account of the Veteran's advanced age. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for left lower extremity neuropathy, claimed as paralysis of the common peroneal nerve, and also specifically claimed as due to herbicide agent exposure, is remanded. 2. Entitlement to service connection for right lower extremity neuropathy, claimed as paralysis of the common peroneal nerve, and also specifically claimed as due to herbicide agent exposure, is remanded. As a preliminary matter, it is not in dispute that the Veteran has diagnosed neuropathy of the bilateral lower extremities, see VA Exam ( July 19, 2016 ), at Question No. 1, and his service in the Republic of Vietnam is also conceded, see VA Memo (rec'd Mar. 6, 2020). Peripheral neuropathy is not among the specifically enumerated disabilities listed under 38 C.F.R. § 3.309 as entitled to presumptive service connection due to herbicide agent exposure from active duty service in the Republic of Vietnam. The Veteran's claim was remanded by the Board in July 2019 to obtain an etiology opinion as to whether his new radiculopathy is at least 50 percent etiologically attributable to service, either as secondary to an already service-connected disorder, or else on a direct basis, including but not limited to on a direct basis specifically due to herbicide agent exposure, even if same cannot be presumptively granted under 38 C.F.R. § 3.309. In pertinent part, an etiological opinion dated March 24, 2020 opined that "[t]here is no established etiological or pathophysiological relationship between onset of the Veteran's lower extremity neuropathy symptoms approximately 40 years after service." See VA Exam ( Mar. 24, 2020 ), at Question No. 7. Notwithstanding this conclusion, a previous examiner appears to have endorsed the possibility that the Veteran's disorder may have manifested as early as 1986, see VA Exam ( July 19, 2016 ), at Question No. 17, which would be no more than 16 years after service. See e.g.: Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis the Board can consider and weight against contrary opinion."). For this reason, the Board determines that an addendum opinion is required, because the Veteran has not yet been afforded substantial compliance with the previous remand directives, and the post-remand etiological opinion is inadequate for adjudication purposes. See Stegall v. West, supra. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran with an appropriate clinician for a VA examination to determine the etiology of his claimed right and left lower extremity neuropathy. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for physical examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (A) Is at least as likely as not (50 percent or greater probability) that the Veteran's right and left lower extremity neuropathy had its onset during any period of service, or is otherwise related to such period of service, to specifically include service aboard the U.S.S. Forrestal and an onboard fire dated July 29, 1967? (B) Is at least as likely as not (50 percent or greater probability) that the Veteran's right and left lower extremity neuropathy was caused or aggravated by his service connected lumbar degenerative disc disease or other service connected disability? The examiner should specifically comment as to the relevance or lack thereof of previous examiners' findings that notwithstanding diagnoses in October 2015, the Veteran's disorder may have actually manifested as early as 1986. Ensure that any medical opinion obtained includes a complete rationale for the conclusions reached. Any 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; any medical opinion 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. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, Associate 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.