Citation Nr: 21065638 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-29 656 DATE: October 26, 2021 REMANDED Entitlement to service connection for neuropathy, right upper extremity, to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for neuropathy, left upper extremity, to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for neuropathy, right lower extremity, to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for neuropathy, left lower extremity, to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for a right knee disorder (chondromalacia patella), to include as secondary to neuropathy, is remanded. Entitlement to service connection for a low back disorder, to include as secondary to neuropathy, is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from May 1983 to August 2004, including service in the Southwest Asia theater of operations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). In May 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Neuropathies In an August 2014 VA medical opinion, the examiner opined that the Veteran's peripheral neuropathies are less likely than not related to service, explaining that according to medical literature, "there is limited/suggestive evidence of no association between deployment to the Gulf War and peripheral neuropathy." In addition, the examiner noted that the Veteran's neuropathy symptoms did not start until October 2010, "almost two decades since deployment." See VA Peripheral Nerve Conditions examination dated August 29, 2014. However, the examiner's statement that there is limited evidence of no association between deployment to the Gulf War and peripheral neuropathy, suggests that the medical literature indicates there is little evidence that peripheral neuropathies are not associated with Gulf War deployment, which is favorable to the Veteran's claims and therefore renders the opinion internally inconsistent and lacking in probative value. See Barr, supra. Additionally, the VA examiner incorrectly concluded that the onset of the Veteran's neuropathy symptoms was almost two decades after deployment to Saudi Arabia. Actually, the service personnel records reflect that the Veteran was deployed to Saudi Arabia in 2000, which was one decade prior to the onset of her symptoms in 2010. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value). Therefore, the August 2014 VA opinion is inadequate. Additionally, there are deficiencies in an August 2015 medical opinion from the Veteran's treating physician, H.K.P., M.D. Doctor H.K.P. opined that the Veteran's neuropathies are "a direct result of her Gulf War participation and deployment to Saudi Arabia. She has degenerative nerve disease and such cases have been described from exposure to chemicals that were found in her area of deployment." See Correspondence from H.K.P., M.D. dated August 31, 2015. However, Doctor H.K.P. emphasized that the Veteran "has no other known risk factors that may have precipitated her current condition," which is inconsistent with the findings of another of the Veteran's treating physicians who observed that the Veteran's neuropathies appear to be "immune mediated". See, e.g., Correspondence from Doctor T.M., M.D. dated June 4, 2013 and August 7, 2013. Moreover, Doctor H.K.P. did not identify the chemicals to which the Veteran was exposed in Saudi Arabia that caused her neuropathies or describe the literature indicating a medical link between the chemicals and the Veteran's neuropathies. See Nieves-Rodriguez, supra. Accordingly, remand is necessary to obtain an adequate opinion addressing the etiology of the Veteran's upper and lower extremity neuropathies. See Barr, supra. Lastly, an April 2014 VA Gulf War medical examination reflects that relevant treatment notes, including "EMG/NCS, imaging studies, [and] neurologists notes" were not available for review, indicating that there may be outstanding treatment records relevant to the Veteran's neuropathies. See VA Gulf War General Medical Examination dated April 14, 2014 at pg. 2. Therefore, on remand, the AOJ must attempt to obtain any outstanding treatment records relevant to this claim. Right Knee The April 2014 VA opinion regarding the etiology of the Veteran's right knee disorder, diagnosed as patellofemoral pain syndrome, concludes that it is less likely than not related to service. However, the VA examiner failed to mention that service treatment records reflect multiple complaints of right knee pain during service, including right knee pain thought to be caused by suspected right knee chondromalacia or patellofemoral syndrome. See Treatment notes from Nellis Air Force Base Hospital dated December 10, 1998. This is suggestive that the April 2014 VA examiner's review of the claims file was cursory at best, which renders the opinion of little or no probative value. See Nieves-Rodriguez, 22 Vet. App. at 304 (explaining that, in general, a medical report cannot merely draw conclusions from data; rather, it should include "a reasoned medical explanation connecting the two"). Therefore, the April 2014 VA opinion regarding the Veteran's right knee disorder is inadequate. Accordingly, remand is necessary to obtain an adequate opinion addressing the etiology of the Veteran's right knee disorder. See Barr, supra. Low Back The April 2014 VA opinion regarding the etiology of the Veteran's low back disorders, diagnosed as back pain and back sprain, concludes that it is less likely than not related to service, explaining that the Veteran was seen only once for back pain during service in 1991 during pregnancy, and that there was no mention of back problems at separation from service in 2004. However, the service treatment records show that the Veteran was seen for low back pain in August 1984 and August 1996. This is suggestive that the April 2014 VA examiner's review of the claims file was cursory at best, which renders the opinion of little or no probative value. See Nieves-Rodriguez, supra. Additionally, while the 1991 service treatment record noted by the VA examiner references the Veteran's pregnancy and her complaint of abdominal and back pain at that time, it does not clearly reflect what caused the Veteran's low back pain. See Emergency Care and Treatment record dated August 5, 1991. Accordingly, remand is necessary to obtain an adequate opinion addressing the etiology of the Veteran's low back disorder. See Barr, supra. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file, including "EMG/NCS, imaging studies, [and] neurologists notes" identified in the April 2014 VA Gulf War General Medical Examination DBQ (see VBMS entry with document type "CAPRI," receipt date 04/14/2014, at PDF page 2 (Section 7). Ensure that all records are accessible in the Veteran's electronic claims file in VBMS for the Board's review. 2. With any necessary assistance from the Veteran, identify environmental AND chemical hazards to which the Veteran may have been exposed during her deployment to Saudi Arabia, including during her duties associated with her military occupational specialty (MOS) of Traffic Management Craftsman. 3. Then, obtain an addendum opinion from an appropriately qualified VA examiner as to the likely etiology of the Veteran's right and left upper extremities neuropathies and right and left lower extremities neuropathies. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. *The examiner's review of the body of this Remand is recommended to assist in avoiding errors that have rendered previous VA opinions inadequate. *The need for another examination(s) is left to the discretion of the medical professional offering the opinion. Should an examination(s) be necessary, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a complete review of the claims file, the examiner is asked to provide an opinion with complete rationale addressing the following: (a) Indicate whether any of the reported/documented signs and symptoms of neuropathy are: (i) associated with any specific pathology or diagnosed disorder, (ii) considered an "undiagnosed illness," or (iii) considered "a medically unexplained chronic multi-symptom illness" related to verified service in Southwest Asia. *Please note: Service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. (b) For any clinically diagnosed neuropathy, provide an opinion as to whether it at least as likely as not (50 percent or higher probability) had its onset during service or is otherwise causally or etiologically related to it, to include exposure to environmental hazards AND/OR chemical hazards in Southwest Asia. *It is requested that the examiner: (i) Reconcile his or her findings with the findings of H.K.P., M.D. and T.M., M.D. whose correspondence is identified below; (ii) Specifically identify environmental hazards AND/OR chemical hazards in Southwest Asia to which the Veteran may have been exposed; and (iii) Specifically describe medical and scientific literature that supports the provided opinions. Although the examiner must review the entire claims file, the examiner is requested to consider the following potentially relevant evidence, which is identified by VBMS labels and receipt dates in parenthesis: *Veteran's lay statements of record, including her May 2021 Board hearing testimony (see VBMS entry with document type "Hearing Transcript," receipt date 05/20/2021); *August 31, 2015 Medical opinion of H.K.P., M.D. (see VBMS entry with document type "Medical Treatment Record - Non-Government Facility," receipt date 09/04/2015); and *June 4, 2013 and August 7, 2013 correspondence of T.M., M.D. reflecting that the Veteran's neuropathies appear to be "immune mediated" (see VBMS entry with document type "Medical Treatment Record - Government Facility," receipt date 05/13/2014, at pages 10-13 of the 121 page folder). *The Board's reference to evidence in this context should not be construed as a determination of its credibility. The examiner must provide a complete rationale for all opinions proffered. 4. Obtain an addendum opinion from an appropriately qualified VA examiner as to the likely etiology of the Veteran's right knee disorder. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. *The examiner's review of the body of this Remand is recommended to assist in avoiding errors that have rendered previous VA opinions inadequate. *The need for another examination(s) is left to the discretion of the medical professional offering the opinion. Should an examination(s) be necessary, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a complete review of the claims file, the examiner is asked to provide an opinion with complete rationale addressing the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed right knee disorder onset during service, manifested within one year after service separation, or is otherwise etiologically related to service. (b) If the answer to (a) is negative, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the currently diagnosed right knee disorder was CAUSED or AGGRAVATED by the Veteran's upper extremities and/or lower extremities neuropathies. *Any increase/aggravation is sufficient; permanent aggravation is NOT required. See Ward v. Wilkie, 31 Vet. App. 233, 239-240 (2019) (permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease). *Note to examiner: To ensure that the correct legal standard is applied, which is essential for adjudication of this claim, the opinion regarding secondary service connection MUST BE STATED IN TERMS OF whether the disorder was CAUSED or AGGRAVATED by the service-connected disorder. Although the examiner must review the entire claims file, the examiner is requested to consider the following potentially relevant evidence, which is identified by VBMS labels and receipt dates in parenthesis: *Veteran's lay statements of record, including her May 2021 Board hearing testimony (see VBMS entry with document type "Hearing Transcript," receipt date 05/20/2021); *Notations of right knee pain and assessment of chondromalacia vs. patellofemoral syndrome reflected in the service treatment records (see VBMS entry with document type "STR - Medical," receipt date 04/04/2005, at pages 15 and 105 of the 105 page folder); *Notations of recurrent right knee pain reflected in the service treatment records (see VBMS entry with document type "STR - Medical," receipt date 04/04/2005, at PDF page 12 of the 27 page folder); and *Notations of right knee pain reflected in the service treatment records (see VBMS entry with document type "STR - Medical," receipt date 04/04/2005, at PDF pages 57-58 of the 112 page folder). *The Board's reference to evidence in this context should not be construed as a determination of its credibility. The examiner must provide a complete rationale for all opinions proffered. 5. Obtain an addendum opinion from an appropriately qualified VA examiner as to the likely etiology of the Veteran's low back disorders. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. *The examiner's review of the body of this Remand is recommended to assist in avoiding errors that have rendered previous VA opinions inadequate. *The need for another examination(s) is left to the discretion of the medical professional offering the opinion. Should an examination(s) be necessary, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a complete review of the claims file, the examiner is asked to provide an opinion with complete rationale addressing the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed low back disorders onset during service, manifested within one year after service separation, or is otherwise etiologically related to service. (b) If the answer to (a) is negative, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the currently diagnosed low back disorders were CAUSED or AGGRAVATED by the Veteran's upper extremities and/or lower extremities neuropathies. *Any increase/aggravation is sufficient; permanent aggravation is NOT required. See Ward v. Wilkie, 31 Vet. App. 233, 239-240 (2019) (permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease). *Note to examiner: To ensure that the correct legal standard is applied, which is essential for adjudication of this claim, the opinion regarding secondary service connection MUST BE STATED IN TERMS OF whether the disorder was CAUSED or AGGRAVATED by the service-connected disorder. Although the examiner must review the entire claims file, the examiner is requested to consider the following potentially relevant evidence, which is identified by VBMS labels and receipt dates in parenthesis: *Veteran's lay statements of record, including her May 2021 Board hearing testimony (see VBMS entry with document type "Hearing Transcript," receipt date 05/20/2021); *Notations of low back pain reflected in the service treatment records (see VBMS entry with document type "STR - Medical," receipt date 04/04/2005, at page 76 of the 79 page folder); *Notations of low back pain reflected in the service treatment records (see VBMS entry with document type "STR - Medical," receipt date 04/04/2005, at pages 3 and 81 of the 112 page folder); and *Notations of low back pain reflected in the service treatment records (see VBMS entry with document type "STR - Medical," receipt date 04/04/2005, at page 24 of the 123 page folder). *The Board's reference to evidence in this context should not be construed as a determination of its credibility. The examiner must provide a complete rationale for all opinions proffered. 6. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.