Citation Nr: 21070951 Decision Date: 11/27/21 Archive Date: 11/27/21 DOCKET NO. 18-33 356 DATE: November 27, 2021 REMANDED Entitlement to service connection for right lower extremity peripheral neuropathy, including as due to herbicide agent exposure, is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, including as due to herbicide agent exposure, is remanded. Entitlement to service connection for right upper extremity peripheral neuropathy, including as due to herbicide agent exposure, is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy, including as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1961 to January 1965. Evidence affiliated with the claims file also indicates that the Veteran served in the Reserve. This matter again comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter in April 2019. 1. Right Lower Extremity Peripheral Neuropathy 2. Left Lower Extremity Peripheral Neuropathy 3. Right Upper Extremity Peripheral Neuropathy 4. Left Upper Extremity Peripheral Neuropathy Evidence associated with the claims file indicates that after the Veteran's active duty service, he was transferred to the Reserve, as he was obligated to serve in the military until January 1967. See January 1965 DD Form 214; January 1965 Military Personnel Record (received in November 2016). Though there are service treatment and personnel records associated with the claims file revealing the Veteran's education, performance, assignments, points, and awards, the precise dates of all periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) are not available. On remand, the RO should confirm the Veteran's periods of ACDUTRA and INACDUTRA. Given the Veteran's statements that his peripheral neuropathy symptoms began in or soon after his active duty service, which would have been while he was on Reserve service, the failure to obtain his Reserve service medical records constitute a pre-decisional duty to assist error. Thus, the Veteran's Reserve service medical records, if outstanding, should also be obtained. The Board acknowledges that the Veteran asserts that his bilateral upper extremity and bilateral lower extremity peripheral neuropathy are due to exposure to herbicide agents. However, the deck logs of the USS Bon Homme Richard (CVA-31), the ship on which the Veteran served during his active duty, do not indicate that said ship, and therefore the Veteran, were in the inland waters or within a 12-nautical mile radius of the shores of Vietnam. See 38 U.S.C. §§ 1116, 1116A; 38 C.F.R. § 3.307(a)(6)(ii); Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966 (2019); Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). Nevertheless, the Board acknowledges that the Veteran did not assert that USS Bon Homme Richard was in the inland or offshore waters of Vietnam. Rather, he states that while he was stationed aboard the USS Bon Homme Richard, he was exposed to herbicide agents by working on aircrafts that arrived on the ship's flight deck after being in "Vietnam airspace." See May 2017 Notice of Disagreement; June 2018 VA Form 9. The USS Bon Homme Richard's deck logs reflect that aircraft work was performed and that aircrafts were launched from the flight deck. Accordingly, the Board requests that, if possible, the RO obtain the flight logs from aircrafts that were maintained and/or launched from the USS Bon Homme Richard during the Veteran's period of active duty service. Furthermore, the Board acknowledges receipt of an August 2021 opinion concluding that the Veteran's bilateral upper extremity and bilateral lower extremity peripheral neuropathy were less likely than not due to his active duty service. However, the clinician authoring this opinion did not address the Veteran's assertion that he would stumble and have burning sensation in his feet along with numbness in the bilateral upper and lower extremities within one year of separation. The Veteran is competent to report the onset and continuity of his observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994). Because the clinician providing the August 2021 opinion did not address the Veteran's competent statements, the Board finds that the opinion is inadequate to determine the nature and etiology of the Veteran's bilateral upper extremity and bilateral lower extremity peripheral neuropathy. Additionally, as the Board is requesting records regarding the Veteran's periods of ACDUTRA and INACDUTRA, the Board cannot ignore the possibility that his conditions may have been noted during his Reserve service. Thus, the Board requests that an addendum opinion regarding the nature and cause of the Veteran's bilateral upper extremity and bilateral lower extremity peripheral neuropathy be obtained and associated with the claims file. The matters are REMANDED for the following action: 1. The RO should, if possible, confirm the presence of any and all aircraft present on the USS Bon Homme Richard during the Veteran's active duty service. For each aircraft so identified, the RO should confirm whether said aircraft was exposed to herbicide agents prior to landing on the USS Bon Homme Richard. 2. The RO should determine the specific dates of when the Veteran served on ACDUTRA and/or INACDUTRA. In this regard a report detailing the Veteran's award of Reserve retirement points will NOT represent compliance with this instruction. Rather, each and every date of active duty, ACDUTRA, and INACDUTRA must be verified. Then, issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA. All medical treatment records associated with the Veteran's Reserve service should also be obtained and associated with the claims file. 3. Then, forward the claims file to an appropriate clinician who has not previously provided an opinion in this matter to determine the nature and etiology of the Veteran's bilateral upper extremity peripheral neuropathy and bilateral lower extremity peripheral neuropathy. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's bilateral upper extremity peripheral neuropathy and/or bilateral lower extremity peripheral neuropathy manifested during, or is the result of, his active duty service, to include herbicide agent exposure, an injury and/or disease incurred during ACDUTRA, and/or an injury incurred during INACDUTRA. In formulating his or her opinion(s), the clinician should consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran's service treatment records; (ii) The Veteran's service personnel records, to include the deck logs of the USS Bon Homme Richard; (iii) The Veteran's post-service medical records; and (iv) The Veteran's competent lay statements regarding his first-hand in-service experiences and the onset and continuity of his symptomatology. If the clinician determines that the Veteran's bilateral upper extremity peripheral neuropathy and/or bilateral lower extremity peripheral neuropathy is/are less likely than not due to active duty service, ACDUTRA, and/or INACDUTRA, the clinician should discuss what other factor(s) caused the disorders. In other words, the clinician should ascertain the most likely etiology of the Veteran's bilateral upper extremity peripheral neuropathy and bilateral lower extremity peripheral neuropathy. (Continued on the next page) A complete rationale must be provided for all opinions and conclusions reached. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoffman 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.