Citation Nr: 21069890 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 14-20 561 DATE: November 22, 2021 ORDER Entitlement to service connection for left foot peripheral neuropathy, claimed as chronic foot problems is granted. Entitlement to service connection for right foot peripheral neuropathy, claimed as chronic foot problems is granted. REMANDED Entitlement to service connection for a skin disability, to include as due to herbicide exposure is remanded. FINDINGS OF FACT 1. The Veteran's left foot peripheral neuropathy is caused by or related to service. 2. The Veteran's right foot peripheral neuropathy is caused by or related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for left foot peripheral neuropathy as a result of exposure to herbicides have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for right foot peripheral neuropathy as a result of exposure to herbicides have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to March 1971. The Veteran and his wife testified at an August 2017 videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The claims were remanded by the Board, most recently, in March 2021, for additional development. In October 2021, the Veteran requested a higher-level review (HLR) of the claims on appeal under the Appeals Modernization Act (AMA). However, the claims on appeal were already before the Board at the time he submitted his HLR request. As such, they are no longer eligible for adjudication under the AMA and the Veteran was informed of such in a November 2021 letter. The Board will proceed accordingly. Lastly, the record reflects that Paralyzed Veterans of America, Inc. is the Veterans Service Organization (VSO) currently recognized by VA as the Veteran's authorized VA claims representative for all matters pending before VA. However, the Virtual VA electronic record contains a more recent VA Form 21-22 dated in October 2017 appointing Disabled American Veterans (DAV) as the Veteran's representative. If accepted by VA, this VA Form 21-22 would automatically revoke Paralyzed Veterans of America, Inc.'s representation of the Veteran; however, it does not appear that VA has acknowledged or accepted this VA Form 21-22. The matter is therefore referred to the AOJ for appropriate action; and, in the absence of further clarification, the Board will continue to recognize Paralyzed Veterans of America, Inc. as the Veteran's authorized representative. Service Connection 1. Entitlement to service connection for left foot peripheral neuropathy, claimed as chronic foot problems 2. Entitlement to service connection for right foot peripheral neuropathy, claimed as chronic foot problems Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be presumed for certain diseases, including early onset peripheral neuropathy, if a Veteran was exposed to an herbicide agent, including Agent Orange, during service. 38 C.F.R. § 3.307 (a)(6), 3.309(e). Even if the Veteran's peripheral neuropathy is not characterized as early onset, service connection for peripheral neuropathy can be granted on a direct causation basis, to include if it were shown that the Veteran has the disability due to exposure to herbicide agents. Combee v. Brown, 5 Vet. App. 248 (1993). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Pursuant to the March 2021 Board remand, the Veteran was afforded a VA medical opinion in August 2021. Regarding the Veteran's diagnosed peripheral neuropathy, the examiner noted that there was evidence of impairment on light touch sensation, temperature sensation and proprioception in both feet. The examiner indicated the Veteran had a history of exposure to Agent Orange while serving in Vietnam. It was also noted that the Veteran underwent six months of chemotherapy for "visceral malignancy." The examiner noted that chemotherapy can result in iatrogenic peripheral neuropathy. The examiner opined that it is at least as likely as not that the malignancy may have been caused by the Veteran's Agent Orange exposure and that because this was treated with chemotherapy which is most likely the cause of the Veteran's peripheral neuropathy, it is at least as likely as not that the Veteran's peripheral neuropathy is a direct result of his service-related exposure to Agent Orange. The August 2021 opinion is adequate as it was based on medical evidence of record showing a connection between the Veteran's herbicide exposure and peripheral neuropathy. As previously noted, the January 2021 VA opinion did not address the Veteran's reports of experiencing neuropathy symptoms during and symptoms and treatment soon after service and ever since. That examiner also did not provide an opinion as to whether the right or left foot peripheral neuropathy is etiologically related to his presumed herbicide exposure. There is no medical evidence, including VA medical opinions, to weigh against this evidence suggesting a nexus between the Veteran's peripheral neuropathy of the bilateral lower extremities and exposure to Agent Orange during his service. Although the Veteran's peripheral neuropathy has not been formally characterized as "early onset," the evidence demonstrates, at least in equipoise, that the Veteran's peripheral neuropathy is caused by or related to herbicide agent exposure, including Agent Orange, on a direct causation basis. Consequently, and affording all reasonable doubt to the Veteran, the Board finds that service connection has been established on a direct causation basis and the claim is granted. 38 C.F.R. § 3.303; See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). REASONS FOR REMAND 1. Entitlement to service connection for a skin disability, to include as due to herbicide exposure is remanded. The Board finds that additional evidentiary development is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. As noted in the prior remand, a complete VA examination and an opinion based upon the medical and lay evidence of record, which considers the Veteran's reports regarding the onset and course of his skin symptoms was to be obtained. Pursuant to a March 2021 remand, the Board requested a new VA examination to assess the current nature and etiology of all skin and nail disabilities present since the claim was filed. In August 2021, an addendum opinion was provided in which the VA examiner concluded that the Veteran's diagnoses of tinea cruris, tinea pedis, and onychomycosis were made after his service and there were no records to develop a previous service related nexus, and thus it was less likely than not the tinea cruris, tinea pedis, and onychomycosis were in cured in or caused by an in-service event. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the examiner did not opine as to the nature and etiology of all skin diagnoses of record as specifically requested. Moreover, the examiner did not discuss the Veteran's contentions regarding in-service onset and continuation thereafter of his skin disability in the provided etiology opinion. Further, while it appears that an examination may have been scheduled then canceled and reordered, it also appears the Veteran was not notified to report to an examination and it is unclear why another VA examination was not obtained and only an addendum opinion provided. Based on the foregoing, the Board finds the August 2021 VA examiner's opinion inadequate and there was not substantial compliance with the prior remand instructions, thus, remand is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to assess the current nature and etiology of all skin and nail disabilities present since the claim was filed. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is any skin condition identified during the appeal at least as likely as not related to service, including herbicide exposure? The examiner is advised that a negative opinion cannot be based solely on the fact that the skin disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents. The examiner is also advised that a negative medical opinion may not be predicted solely on the absence of any in-service documented complaints, findings, or diagnoses. The examiner must specifically address the Veteran's reports of in-service symptoms which have continued since. A clear and complete rationale for any opinions or conclusions expressed should be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In providing the requested opinion, consider the Veteran's description of the in-service injury and symptoms as well as post-service symptoms. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 2. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If the VA examination does not comply with the Board's instructions, please request an addendum opinion to address these deficiencies from the same or a different VA examiner. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Williams, 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.