Citation Nr: 21068340 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-40 003 DATE: November 10, 2021 REMANDED Entitlement to service connection for low back disability is remanded. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to January 1971, to include service in the Republic of Vietnam during the Vietnam War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that jurisdiction currently rests with the Denver, Colorado RO. This case has a lengthy procedural history that has been addressed in detail in prior Board decisions. Most recently, this claim was before the Board in April 2019. At that time, it was determined that new and material evidence had been received in regard to the bilateral upper extremity peripheral neuropathy claim and that claim was reopened and remanded for additional development, along with the claim for low back disability. The Board notes that one additional issue that was on appeal (service connection for bilateral hearing loss) was granted on remand. The Veteran has not appealed that favorable finding and, therefore, that issue is no longer before the Board and is not addressed herein. The case, consisting of the remaining two issues, has now been returned to the Board for further adjudication. Unfortunately, an additional remand is necessary. 1. Entitlement to service connection for low back disability is remanded. In a January 2020 opinion, a VA examiner opined that "the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." The provided rationale stated that "the entrance exam dated 02/24/1969 showed a recurrent back pain. The separation exam dated January 18, 1971, showed a record that the lumbar spine condition has changed, had lumbar strain recorded. The veteran had clear and unmistakable evidence of the preexisting lumbar spine recurrent pain. There is evidence to indicate the Veteran had lumbar spine strain after a fall in 1970 while in service, and he suffered from the disorder during service, which is typical of the condition, was treated acutely while in service. However, the progression is not beyond normal progression for this disorder. No evidence of permanent aggravation beyond normal progression identified." Unfortunately, the Board finds this rationale to be insufficient. For example, despite stating that the Veteran's separation exam, "showed a record that the lumbar spine condition has changed, had lumbar strain recorded", the examiner concluded that the Veteran "was treated acutely while in service" and "no evidence of permanent aggravation beyond normal progression identified". The examiner did not explain why this asserted "change" in the Veteran's lumbar spine condition between entry and separation did not constitute an aggravation. Further, it is noted that the examiner seemingly tried to provide further rationale in stating that "there is no clear objective evidence to support that the Veteran's claimed condition (lumbar spine condition/disability) is aggravated beyond its natural progression by the lumbar spine strain condition incurred in service in 1970. This veteran has additional contributing factors (advancing age, previous surgeries, and occupational repetitive physical work) as an additional contributing factors resulting in the lumbar degenerative conditions". However, even those referenced "additional contributing factors" do not exclude the possibility of the Veteran's active duty service also being an "additional contributing factor". Similarly, the opinion in regard to service connection on a direct basis also contains rationale that is erroneous. Despite noting that "the separation exam dated January 18, 1971, showed a record that the lumbar spine condition has changed, had lumbar strain recorded", the examiner also stated that "during service, the lumbar strain condition was acute only" without further explanation. Given the foregoing, a remand is necessary for an additional VA opinion. 2. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is remanded. Unfortunately, a new opinion is also needed in regard to the Veteran's claimed bilateral upper extremity peripheral neuropathy. In a January 2020 opinion, a VA examiner opined that "the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness". As rationale, the examiner provided that "the claim file showed a diagnosis of the bilateral upper extremity diagnosis in 2010, 2013 & 2016 several years after the release from active service, no clear evidence to support that the bilateral upper extremity peripheral neuropathy manifested within one year of the veteran's discharge from service, no indication or clear evidence that the condition is due to the herbicide agent exposure in Vietnam and his in-service activities as a radio operator carrying a backpack radio. The physical exam and Veteran's interview on the day of the exam revealed only a left elbow/ulnar intermittent pain with numbness/tingling consistent with the Ulnar neuropathy per the EMG result in 2015, no objective evidence of Right upper extremity neuropathy upon exam. Unable to confirm a current chronic diagnosis of right upper extremity neuropathy with today's exam. A nexus has not been established." However, while offering a conclusion, the examiner did not explain why there was "no indication or clear evidence that the condition is due to the herbicide agent exposure in Vietnam and his in-service activities as a radio operator carrying a backpack radio". In addition, in regard to entitlement on a secondary basis in regard to service-connected diabetes mellitus, the VA examiner opined that "the claim file showed a record of left Ulnar neuropathy per the EMG result in 2015, no objective evidence of right upper extremity neuropathy. Unable to confirm a current chronic diagnosis of right upper extremity neuropathy with currently available records and/or today's exam. There is no indication or objective evidence to support that the left upper arm Ulnar neuropathy is incurred in or caused by (the) event, injury, illness during service (Diabetes type 2) and no objective evidence of right upper extremity neuropathy as a result of Diabetes type 2. A nexus has not been established." Further, "there is no objective evidence to support aggravation beyond its natural progression by the service-connected Diabetes Mellitus Type ll. The Veteran's left Ulnar neuropathy is less likely than not aggravated beyond its natural progression by the service-connected Diabetes Mellitus Type ll condition." Unfortunately, the VA examiner also failed to explain why there is no "objective evidence" of a secondary causation or aggravation related to the Veteran's service-connected diabetes. Given the overall lack of provided rationale, new opinions are needed. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The matters are REMANDED for the following actions: 1. Ask the appropriate examiner to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify any current right and left upper extremity neuropathy the Veteran has presented during the claim period (from September 2012 to the present), even if resolved. For each disability, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disability: (a.) had an onset in service; (b) manifested to a compensable degree within one year of the Veteran's discharge from service (i.e., by January 1972); (c) is otherwise related to an in-service injury, event, or disease, to include the Veteran's conceded herbicide agent exposure in Vietnam and his in-service activities as a radio operator carrying a backpack radio; (d) is caused by his service-connected diabetes mellitus; or (e) is aggravated (i.e., worsened beyond the natural progression) by his service-connected diabetes. In so opining, the examiner is asked to reconcile, to the extent possible, the Veteran's assertion that his upper extremity neuropathy is related to his in-service duties as a radio operator (including carrying the weight of the backpack radio) and/or exposure to herbicide agents during service in Vietnam. In addition, the Veteran asserts that his neuropathy is secondary to diabetes, and in opining as to such, the VA examiner is asked to reconcile, to the extent possible, the June 2017 VA treatment record that indicates that it is likely that the Veteran's "neuropathy" is associated with his diabetes. 2. After obtaining any outstanding records, ask the appropriate examiner to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify any low back disability the Veteran has presented during the claim period (from June 1990 to the present), even if resolved. For each diagnosis, the examiner should opine whether there is clear and unmistakable evidence that the disability pre-existed service. If there is clear and unmistakable evidence that the disability pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disability did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the Veteran's disability, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. If there is no clear and unmistakable evidence that the current disability pre-existed service, then the examiner is asked whether it is at least as likely as not (a 50 percent or greater probability) that the disorder had an onset in service or is otherwise related to an in-service injury, event, or disease, to include the Veteran's in-service August 1970 fall and his activities as a radio operator carrying a backpack radio. The examiner should consider all medical and lay evidence of record. In so opining, the examiner is asked to reconcile, to the extent possible, the Veteran's January 1971 separation examination and September 1970 service treatment records noting a lumbar strain due to a fall during service (as well as his assertion on the assertion made on his June 1990 claim application that he was injured while "entering security defence bunker and fell down the stairs.... later part of 1970"); a note that during September 1970 treatment, the Veteran reported that his pain had worsened in the month following the fall and that pain in the sacroiliac region radiated to the right hip and thigh. In addition, the Veteran's assertion that his low back disability is related to his in-service duties as a radio operator, including carrying the weight of the backpack radio, should be considered and reconciled. 3. Thereafter, readjudicate the claims. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.