Citation Nr: 21064418 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 16-30 433 DATE: October 20, 2021 REMANDED Entitlement to service connection for peripheral neuropathy of the upper and lower extremities is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1975 to June 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During the current appeal, and specifically in March 2019, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the claims file. In July 2021, the Veteran was informed that the VLJ who conducted the March 2019 hearing was unavailable to adjudicate this appeal. The Veteran was offered another hearing, and, in a September 2021 response, he indicated that he did not wish to appear for another Board hearing and instead wanted to proceed based on the evidence of record. In August 2019, the Board remanded this matter for further evidentiary development. Service connection for peripheral neuropathy of the upper and lower extremities The purpose of the August 2019 Board remand was to obtain outstanding VA and private treatment records and to obtain a VA examination to determine the nature and etiology of the Veteran's peripheral neuropathy. The Board found that the Veteran had submitted a nexus opinion which triggered VA's duty to assist by providing the Veteran an examination. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board noted that the Veteran's private records included a diagnosis of chronic inflammatory demyelinating polyneuritis (CIDP) since December 2008, that a January 2016 private medical opinion linked a neuropathy condition to the Veteran's service, and that further development was needed to clarify the nature and etiology of this condition. In November 2019, a development letter was sent to the Veteran requesting additional information from him as to his outstanding treatment records. He did not respond to the VA's request for information. However, the letter did not include requisite information, and the Veteran's information was not filled into the form. The Board is uncertain, based on the VA's unclear request, whether the Veteran understood the information being requested. On remand, he should be accorded another opportunity to identify any outstanding treatment records and to allow VA to request any identified records. Further, a January 2020 VA examiner diagnosed only peripheral neuropathy due to CIDP, despite noting that the Veteran's medical history contained additional diagnoses. The examiner recorded the Veteran's reports of the onset of numbness during service and his legs "going to sleep" during his military service as well as his belief that ill-fitting boots during service contributed to this condition. The examiner also recorded the Veteran's reports of numbness of his hands and the previous testing results showing mild neuropathy, bilateral carpal tunnel syndrome, and entrapments of the ulnar sensory nerve at the canal of Guyon. Testing of the Veteran's lower extremities previously supported peripheral neuropathy combining multiple features. The examination report indicated that the Veteran's median, ulnar, sciatic, and tibial nerves were affected. The examiner ultimately provided a negative etiological opinion. In so doing, the examiner noted that the Veteran's service treatment records are silent on the issue of peripheral neuropathy and that ill-fitting shoes and other service activities do not cause or aggravate CIDP. Because the Veteran's CIDP was diagnosed decades after service and because the examiner believes that is the condition affecting the Veteran, the examiner opined it was less likely than not that the Veteran's peripheral neuropathy due to CIDP was incurred in, or caused by, "the peripheral neuropathy of the extremities to include as due to the issuance of improperly sized boots during service." This opinion is both confusing and unclearthe examiner indicates that the Veteran's diagnosis is CIDP despite noting a seemingly different diagnosis of peripheral neuropathy due to CIDP on the examination report. Also, the opinion suggests that the Veteran's peripheral neuropathy caused the CIDP. The examiner also dismissed the Veteran's reports of numbness during service and simply stated that the initial mild numbness was not caused by CIDP without any rationale or explanation. The examiner did not address or provide an etiological opinion for the Veteran's upper extremities, despite noting symptoms and diagnoses to his upper extremities. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. The Board finds that the development conducted after the August 2019 remand is inadequate and that, as such, there has not been substantial compliance with the prior remand directives. Stegall, 11 Vet. App. at 271. It does not appear that the January 2020 VA examiner gave any consideration to the Veteran's contentions in providing an opinion, including his reports of serving as a medic and speaking to his fellow medical servicemembers informally about the numbness he was experiencing during service. The examiner appeared to discount wholly the Veteran's reports of numbness during service, despite the continuation of the same symptoms to the present. Also, the examiner did not provide an etiological opinion addressing the Veteran's bilateral upper extremity disabilities. Given the inadequacies of the January 2020 examination, the Board finds that there has not been substantial compliance with the August 2019 Board remand directives and that corrective action is, therefore, necessary. A remand is necessary to accord the Veteran an opportunity to undergo another VA examination (with an etiological opinion) to determine the nature and etiology of any currently diagnosed peripheral neuropathy of the bilateral upper and lower extremities. Additionally, at present, the previously referenced January 2016 private medical opinion is not of record. Statements from that date are in the record, as copied on the Veteran's January 2016 Notice of Disagreement and read into the record at the Veteran's March 2019 Board hearing. A brief private opinion is of record dated June 7, 2016, which notes that the Veteran's use of boots without arches, road marches, and inclement weather contributed to his current peripheral nerve disorder. It is unclear whether a January 2016 private medical opinion was previously of record or if the opinion was not ever associated with the claims file. On remand, efforts should also be made to locate a copy of any January 2016 private opinion that exists and to associate such with the claims file. Accordingly, this matter is REMANDED for the following action: 1. Identify and obtain any outstanding treatment records and associate them with the claims file. Special attention is directed to a January 7, 2016, private medical opinion which has been copied into and read into the record by the Veteran, but which is not currently associated with the claims file. All requests and response for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Then, schedule an appropriate examination to determine the nature and etiology of any peripheral neuropathy disability of the upper and lower extremities that the Veteran may have, to include peripheral neuropathy, CIDP, carpal tunnel syndrome, and peripheral neuropathy due to CIDP. The examiner should review the claims folder and indicate such on the examination report. Any testing deemed necessary should be conducted, and the results thereof should be noted in the examination report. All relevant pathology shown on examination should be annotated in the examination report. After review of the claims folder, as well as an interview with, and examination of, the Veteran, the examiner is asked to: a. Identify/diagnose any such neurological disorder of the upper and lower extremities that presently exists or that has existed during the appeal period. b. Opine as to whether it is at least as likely as not (a 50 percent or greater probability), that any such diagnosed neurological disabilities of the upper and/or lower extremities onset in, or is otherwise etiologically related to, his military service. In other words, is any diagnosed neurological disorder of the upper and/or lower extremities consistent with the Veteran's reported in-service experiences? In expressing these opinions, the examiner is asked to consider and address the Veteran's contentions of numbness in his extremities beginning in service and continuing to the present as well as his reports that his boots did not fit well and that the marching done in service causing pain and numbness to his lower extremities. The examiner is also asked to address the Veteran's reports of working as a medic during service and that, given his relationship with the other medical professionals at the time, he may have been informally advised or taken care of during his military service. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for the scheduled VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.