Citation Nr: 21071572 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 13-23 432 DATE: November 30, 2021 REMANDED Entitlement to a separate rating for right lower extremity (RLE) radiculopathy/ neuropathy associated with service-connected low back disability is remanded. Entitlement to service connection for bilateral upper extremity (BUE) peripheral neuropathy, to include as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1969 to February 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by a Department of Veterans' Affairs (VA) Regional Office. In November 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In May 2015, January 2018, February 2020, and May 2021, the Board remanded the case for additional development and it now returns for further appellate review. 1. Entitlement to a separate rating for RLE radiculopathy/neuropathy associated with service-connected low back disability. 2. Entitlement to service connection for BUE peripheral neuropathy, to include as due to exposure to herbicide agents. The Board observes that this case has been remanded on multiple occasions in order to determine whether the Veteran has current disabilities of RLE radiculopathy/neuropathy and BUE peripheral neuropathy in light of the conflicting evidence of record and, if so, whether the former is related to his service-connected back disability and the latter is related to his acknowledged in-service exposure to herbicide agents. Specifically, while a June 2012 VA examination found no evidence of a neurological disorder, to include radiculopathy and neuropathy, of the RLE and BUE and an August 2015 VA examination reflected that muscle strength, sensory, and reflex testing was normal, the latter examiner noted that the Veteran had symptoms consisting of mild constant pain in the RLE, moderate intermittent pain in the RLE and BUE, mild paresthesias and/or dysesthesias in the RLE and BUE, and moderate numbness in the RLE and BUE, experienced functional impairment related to such symptoms (i.e., difficulty standing for extended periods and dropping things easily), and diagnosed generalized peripheral neuropathy of all extremities. However, in providing the requested etiological opinions, the examiner stated that the Veteran did not have RLE neuropathy, which contradicted his findings on examination, and failed to provide an opinion as to whether his peripheral neuropathy of the BLE was directly related to his in-service exposure to herbicide agents. Thus, an addendum opinion was obtained in February 2018; however, at such time, the VA examiner found no evidence of a RLE radiculopathy or other peripheral neuropathy related to his back disability, and opined that the Veteran's diagnosed peripheral neuropathy was unrelated to his in-service exposure to herbicide agents; however, in an April 2019 addendum opinion, he found that the Veteran did not have evidence of RLE or BUE neuropathies at the August 2015 VA examination. However, as the February 2018/April 2019 VA examiner did not reconcile the August 2015 diagnosis of generalized peripheral neuropathy of the lower extremities with determination that the Veteran did not have RLE neuropathy, and newly received service treatment records (STRs) reflected relevant complaints pertaining to the RLE and BUE, the Veteran was afforded another VA examination in December 2020. At such time, the examiner found that there was no evidence of RLE radiculopathy or any peripheral neuropathy disorder, to include such affecting the RLE and BUE, on examination and an EMG in 2012 of the RLE was negative. However, as the examiner did not reconcile his determination that the Veteran did not have RLE or BUE peripheral neuropathy with the August 2015 VA examination findings of generalized lower and upper extremity peripheral neuropathy, the Board most recently remanded the case in May 2021 to obtain another addendum opinion. In this regard, the examiner was requested to address whether the Veteran has RLE radiculopathy and/or neuropathy associated with his back disability and/or BUE peripheral neuropathy that has been present at any time proximate to his May 2010 claim, even if such is asymptomatic or has resolved. Additionally, if the examiner finds that the Veteran does not have a diagnosis of RLE radiculopathy and/or neuropathy, or BUE peripheral neuropathy, he or she should reconcile such determination with the finding of generalized peripheral neuropathy of the bilateral upper and lower extremities noted at the August 2015 VA examination. In June 2021, the December 2020 VA examiner reviewed the record and opined that, based on the history provided by the Veteran at the time of such examination, there were no complaints of a RLE radiculopathy at the time of his back injury, and there were no findings of a RLE radiculopathy on EMG in November 2007 or July 2012, or on the December 2020 VA examination. The examiner further opined that, based on the December 2020 VA examination, there were no findings of BUE peripheral neuropathy and there was no objective testing, such as an EMG, that demonstrated a BUE peripheral neuropathy. In this regard, he indicated that medical evaluations differ; however, objective findings such as an EMG are more reliable when diagnosing peripheral neuropathy. He also found that there was no functional impairment caused by the RLE symptoms. However, while the June 2021 VA examiner relied, in part, on EMG findings from November 2007 and July 2012 in determining that the Veteran did not have a RLE radiculopathy, such tests were conducted at least three years prior to the August 2015 VA examination. Furthermore, there is no indication that such were performed on the BUE. Moreover, the June 2021 VA examiner also relied upon a finding that the Veteran did not have complaints of a RLE radiculopathy at the time of his back injury; however, his STRs reflect complaints of contralateral pain in the RLE and radiculitis of the bilateral lower extremities, both of which were associated with the evaluation of his back disability, in August 1984 and November 1984, respectively. Thus, it appears that such opinion is based on an inaccurate factual premise. Further, the examiner did not reconcile his determinations with the August 2015 VA examination findings of generalized lower and upper extremity peripheral neuropathy; rather, he simply noted that medical evaluations differ. Consequently, while the Board regrets the additional delay, another remand is necessary in order to obtain an addendum opinion that fully addresses the Board's inquiries. The matters are REMANDED for the following action: Forward the record, to include a copy of this Remand, to an examiner other than the December 2020/June 2021 VA examiner, if possible, for an addendum opinion addressing the nature and etiology of the Veteran's claimed RLE radiculopathy/neuropathy and BUE peripheral neuropathy. The need for an additional examination, to include the need for any diagnostic testing such as an EMG, of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should address the below inquires: (A) (1) Does the Veteran has RLE radiculopathy and/or neuropathy associated with his back disability that has been present at any time proximate to his May 2010 claim, even if such is asymptomatic or has resolved? If the examiner finds that the Veteran does not have a diagnosis of RLE radiculopathy and/or neuropathy, he or she should reconcile such determination with the finding of generalized peripheral neuropathy of the lower extremities noted at the August 2015 VA examination. Further, the examiner is advised that, while the Veteran has a separate diagnosis of meralgia paresthetica unrelated to his back disability, such affects the thigh, and the Veteran has consistently reported radiating pain down the leg and numbness of the feet. (2) If the Veteran has RLE radiculopathy and/or neuropathy associated with his back disability, the examiner should indicate whether such is characterized by mild incomplete paralysis, moderate incomplete paralysis, moderately severe incomplete paralysis, severe incomplete paralysis or complete paralysis of the affected nerve. The examiner should clearly delineate all functional impairments caused by the RLE. (B) (1) Does the Veteran have BUE peripheral neuropathy that has been present at any time proximate to his May 2010 claim, even if such is asymptomatic or has resolved? If the examiner finds that the Veteran does not have a diagnosis of BUE peripheral neuropathy, he or she should reconcile such determination with the finding of generalized BUE peripheral neuropathy noted at the August 2015 VA examination. (2) If so, is it at least as likely as not (i.e., at least a 50 percent probability or greater) that the Veteran's BUE peripheral neuropathy had its onset in, or is otherwise related to, his military service, to include his acknowledged in-service exposure to herbicide agents? In offering such opinion, the examiner is advised that the sole basis for a negative opinion cannot be that BUE peripheral neuropathy is not on the list of diseases subject to presumptive service connection based on exposure to herbicide agents. The examiner is also advised that, in addressing the opinions requested in (A)(1) and (B)(2), he or she should must discuss the Veteran's STRs reflecting complaints of contralateral pain in the RLE and radiculitis of the bilateral lower extremities, both of which were associated with the evaluation of his back disability, in August 1984 and November 1984, and reports of weakness in the upper right extremity in August 1984; a July 1987 VA examination reflecting complaints of numbness in the right leg and left arm/hand; and the August 2015 VA examination showing a finding of generalized lower and upper extremity peripheral neuropathy. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.