Citation Nr: 21067749 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 15-23 277A DATE: November 5, 2021 REMANDED Entitlement to service connection for right upper extremity peripheral neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1964 to March 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the VBA AMC RO. In April 2020, the Board issued a decision denying entitlement to service connection for right upper extremity peripheral neuropathy. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 Order, the Court granted a Joint Motion for Partial Remand of the parties and remanded the case to the Board for action consistent with the Joint Motion. This case was most recently before the Board in June 2021, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. In addition, in a September 2021 rating decision, the AOJ granted service connection for left lower extremity peripheral neuropathy and right lower extremity peripheral neuropathy, and assigned initial ratings. To date, the Veteran has not submitted a notice of disagreement with this decision. As this decision represents a full grant of the benefits sought with respect to this claims for service connection, such issues are no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). Service Connection Right Upper Extremity Peripheral Neuropathy The Veteran contends that his right upper extremity peripheral neuropathy is etiologically related to his active service. Specifically, the Veteran asserts that his symptoms of numbness and tingling had its onset shortly after separation from active service, and that his right upper extremity peripheral neuropathy is as a result of herbicide agent exposure sustained during his service in the Republic of Vietnam. As noted above, the claim was most recently before the Board in June 2021, at which time it was remanded to the AOJ for further development. Specifically, the June 2021 Board remand directed the AOJ to obtain a VA opinion as to the nature and etiology of his claimed right upper extremity peripheral neuropathy. In this regard, the June 2021 Board remand noted that the September 2019 VA opinions were inadequate to decide the claim because the opinions failed to address the Veteran's statements regarding the onset and continuity of his symptoms, and was based on an inaccurate factual premise. Namely, the examiner erroneously indicated that the Veteran's symptoms began in 2013, but treatment records showed peripheral neuropathy as early as 2007. Accordingly, additional VA examination was required. The Veteran was afforded the directed VA examination in August 2021. At that time, the examiner opined that the Veteran's right upper extremity peripheral neuropathy was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, the examiner noted that peripheral neuropathy is an illness thought to be associated with Agent Orange exposure, and that early onset peripheral neuropathy is presumed related to herbicide agent exposure when the disease appears within one year of exposure. The examiner noted that right upper extremity peripheral neuropathy began years after leaving service and therefore did not meet the VA guidelines of neuropathy within one year of exposure. Therefore, the examiner opined that right upper extremity peripheral neuropathy was less likely than not incurred in or caused by herbicide agent exposure during active service. The Board finds the August 2021 VA opinion inadequate to decide the claim. In this regard, the examiner failed to adequately provide supporting rationale for the conclusions reached. Rather, the examiner provided a mere conclusory statement that the Veteran's right upper extremity peripheral neuropathy was not likely due to service because it did not have its onset within one year without further explanation. Additionally, the examiner failed to provide an opinion as to direct service connection, unrelated to herbicide agent exposure. The Board notes the Veteran and his wife have asserted that his symptoms began during active service and have continued since. See e.g. VA Form 21-4138 Statement in Support of Claim, May 28, 2014. Furthermore, the Veteran seems to assert that his symptoms had "spread to" his right arm and hand, presumably from his bilateral legs. Therefore, the Board finds that the August 2021 VA examiner failed to adequately address all lay statements and contentions regarding the Veteran's right upper extremity peripheral neuropathy, to include as secondary to now service-connected bilateral peripheral neuropathy of the lower extremities. Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. As such, remand is again required to afford the Veteran a VA examination that comply with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. at 268, 271 (1998). Accordingly, the Board concludes that an additional VA examination for the Veteran's claimed right upper extremity peripheral neuropathy should be afforded. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 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 claim 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 his 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, obtain an etiology opinion as to the Veteran's claimed right upper extremity peripheral neuropathy from an appropriate medical professional. The record must be made available to the examiner The record, to include a copy of this Remand, should be made available to the examiner, and all indicated tests should be conducted. Further physical examination is left to the discretion of the examiner. The examiner should respond to the following questions: (A) Is at least as likely as not (50 percent or greater probability) that the Veteran's right upper extremity peripheral neuropathy had its onset during any period of service, or is otherwise related to such period of service, to include herbicide agent exposure? (B) Is at least as likely as not (50 percent or greater probability) that the Veteran's right upper extremity peripheral neuropathy was caused by or permanently worsened by service-connected peripheral neuropathy of the bilateral lower extremities? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) 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. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.