Citation Nr: 21064695 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 14-02 433 DATE: October 21, 2021 REMANDED Entitlement to service connection for right upper extremity peripheral neuropathy is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. Entitlement to service connection for alopecia is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October1968 to October 1971, including service in the Republic of Vietnam. In December 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In March 2018, the Board of Veterans' Appeal (Board) remanded these issues for additional development. In April 2020, the Board denied the appeal. The Veteran appealed the April 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2021 order, which incorporated the parties Joint Motion for Remand (JMR), the Court vacated and remanded the April 2020 Board decision. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities and for alopecia are remanded As to the claims of service connection for peripheral neuropathy of the bilateral upper and lower extremities and for alopecia, JMR vacated and remanded the April 2020 Board decision because the negative etiology opinions provided by the July 2019 VA examiners were not adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Specifically, as to the claims of service connection for peripheral neuropathy of the bilateral upper and lower extremities, including due to the Veteran's presumptive exposure to herbicides because of her confirmed service in the Republic of Vietnam during the Vietnam War, the JMR stated that the negative etiology opinions were not adequate because "the July 2019 examiner relie[d] on a diagnosis date of 30 years after service and did not consider Appellant's May 2011 statement regarding an onset date of 20 years after service." Therefore, "[u]pon remand, the Board ... [was directed to] ... obtain an opinion that determines what the relevant time frame would be for manifestations of peripheral neuropathy to be temporally related to the toxin exposure and that considers Appellant's May 2011 statements regarding an onset date of 20 years after service..." Likewise, as to the claim of service connection for alopecia including due to the Veteran's presumptive exposure to herbicides because of her confirmed service in the Republic of Vietnam during the Vietnam War, the JMR stated that the negative etiology opinions were not adequate because "... the examiner noted that Appellant's hair loss symptoms began in her late 20's to early 30's... and failed to reconcile Appellant's onset of hair loss, which occurred prior to menopause and her hypertension diagnosis, with its determination that Appellant's hair loss is related to her postmenopausal condition and hypertension." Therefore, "[u]pon remand, the Board ... [was directed to obtain an] ... opinion that reconciles the Appellant's onset of hair loss with the determination that Appellant's alopecia is related to her postmenopausal condition and hypertension." Given the above, the Board finds that a Remand to obtain etiology opinions asked for in the JMR is required. See 38 U.S.C. § 5103A(d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). While the appeal is in remand status, the regional office (RO) should also be obtained and associated with the record any outstanding VA and private treatment records. See 38 U.S.C. § 5103A(b). This appeal is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). Any help with the above would be appreciated. 3. In order to comply with the JMR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of her peripheral neuropathy of the bilateral upper and lower extremities. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that peripheral neuropathy of the bilateral upper and/or lower extremities is due to a disease or injury while on active duty including the Veteran's presumptive herbicide exposure in the Republic of Vietnam. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that peripheral neuropathy of the bilateral upper and/or lower extremities manifested in the first post-service year. In providing answers to the above questions the examiner should consider and discuss the service treatment records. In order to comply with the JMR, in providing answers to the above questions the examiner should consider and discuss the Veteran's competent lay claims regarding observable symptomatology to include her May 2011 statement regarding an onset date of 20 years after service. In order to comply with the JMR, in providing answers to the above questions the examiner should "determines what the relevant time frame would be for manifestations of peripheral neuropathy to be temporally related to the toxin exposure and that considers Appellant's May 2011 statements regarding an onset date of 20 years after service..." In providing answers to the above questions the examiner cannot rely solely on negative evidence. In providing answers to the above questions the examiner cannot rely on the fact that the Veteran's peripheral neuropathy is not the type of peripheral neuropathy for which VA provides a presumption of in-service incurrence for appellant's who service in the Republic of Vietnam during the Vietnam War. In providing answers to the above questions, the examiner is also advised that 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 conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. In order to comply with the JMR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of her alopecia. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that alopecia is due to a disease or injury while on active duty including the Veteran's presumptive herbicide exposure in the Republic of Vietnam. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that alopecia manifested in the first post-service year. In providing answers to the above questions the examiner should consider and discuss the service treatment records. In order to comply with the JMR, in providing answers to the above questions the examiner should consider and discuss the Veteran's competent lay claims regarding observable symptomatology to include her claims that her hair loss symptoms began in her late 20's to early 30's. In order to comply with the JMR, in providing answers to the above questions the examiner should reconciles the appellant's claims that her hair loss symptoms began in her late 20's to early 30's, prior to menopause and her hypertension diagnosis, with the July 2019 VA examiner's opinion that her alopecia is related to her postmenopausal condition and hypertension. In providing answers to the above questions the examiner cannot rely solely on negative evidence. In providing answers to the above questions the examiner cannot rely on the fact that alopecia is not a disability for which VA provides a presumption of in-service incurrence for appellant's who service in the Republic of Vietnam during the Vietnam War. In providing answers to the above questions, the examiner is also advised that 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 conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.