Citation Nr: 21074703 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 14-34 205 DATE: December 16, 2021 REMANDED Entitlement to service connection for left upper extremity (LUE) peripheral neuropathy, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a heart condition, to include ischemic heart disease, coronary artery disease, myocardial infarction, congestive heart failure, valvular heart disease, and hypertensive heart disease, to include as secondary to service-connected disabilities, including posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1971 to July 1972. This matter comes before the Board of Veteran's Appeals (Board) from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The January 2015 rating decision: denied service connection for right upper extremity cubital tunnel syndrome, erectile dysfunction, acne, seborrheic keratosis left temple region, left upper extremity peripheral neuropathy, right upper extremity peripheral neuropathy, and ischemic coronary artery heart disease; denied individual unemployability; and granted increased ratings for right lower extremity peripheral neuropathy, left lower extremity peripheral neuropathy, and diabetes mellitus. The Veteran submitted a June 2015 notice of disagreement appealing the issues of individual unemployability, bilateral lower extremity peripheral neuropathy, bilateral upper extremity peripheral neuropathy, coronary artery disease, and erectile dysfunction. An August 2015 statement of the case (SOC) affirmed the June 2015 rating decision, to which the Veteran submitted a VA Form 9. A February 2017 supplemental statement of the case (SSOC) continued the RO's previous denials, and the matters were sent to the Board for review. A May 2018 Board decision granted individual unemployability, dismissed the issues regarding bilateral lower extremity, and remanded the issues of erectile dysfunction, bilateral upper extremity peripheral neuropathy, and ischemic heart disease. A March 2020 rating decision granted service connection for right ulnar neuropathy and erectile dysfunction, but a March 2020 SSOC continued the denial of service connection for ischemic heart disease and left upper extremity peripheral neuropathy. The Board remanded the remaining issues in October 2020 decision for additional development and the case has returned to the Board for appellate consideration. The record reveals that the Veteran has been diagnosed with congestive heart failure, valvular heart disease, and hypertensive heart disease. The U. S. Court of Appeals for Veterans Claims has held that the scope of a claim for service connection for disability includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In accordance with Clemons, the Board has expanded the issue on appeal to service connection for a heart condition, as reflected on the title page. 1. Entitlement to service connection for LUE peripheral neuropathy. Although the Board sincerely regrets additional delay, there has not been substantial compliance with the Board's previous remand directives regarding the issues and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board's October 2020 remand directives sought a new VA opinion as to the Veteran's LUE peripheral neuropathy. Specifically, the Board asked the examiner to identify whether the Veteran had a current diagnosis of LUE peripheral neuropathy during the appellate period. In making that determination, the examiner was asked to discuss the September 2013 VA treatment record diagnosing the Veteran with LUE peripheral neuropathy. The Veteran was afforded a new VA opinion on his LUE peripheral neuropathy in May 2021. As to the September 2013 VA treatment record, the examiner stated "review the note from Dr [A.], MD, orthopedic surgery dated 9/12/13 which diagnoses left upper extremity neuropathy without an identified etiology at that time. He adds that a diagnosis to identify underlying cause would require further evaluation, including MRI cervical spine. No treatment was prescribed. There is no objective evidence of left side neuropathy on exam today." Reliance upon the cited opinion by the VA examiner does not substantially comply with the Board's remand directives. The May 2021 VA examiner was requested to discuss the September 2013 VA treatment record, which was not accomplished. The examiner's note is more a recitation of the facts than a discussion as to why the examiner finds there to be no current disability. Accordingly, remand is warranted. 2. Entitlement to service connection for a heart condition. The Veteran's initial contention was that his heart condition is due to herbicide exposure in the Vietnam war. The Board noted in its May 2018 decision that the Veteran's DD-214 confirmed his service in the Republic of Vietnam and his exposure to herbicides was conceded. Although the Veteran's medical records indicated that none of his diagnosed heart conditions qualified as ischemic heart disease, which would warrant presumptive service connection, the Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In his October 2021 Appellate Brief, the Veteran made the additional assertion that his heart conditions may be secondary to his service-connected PTSD, including a citation to a medical treatise on the issues. There are no etiology opinions of record addressing direct or secondary service connection for each of the Veteran's diagnosed heart conditions. As such, the Board finds that a new VA medical opinion is necessary to determine the nature and etiology of any current heart condition, to include a discussion of whether any diagnosed heart condition is related to herbicide exposure in Vietnam or his service-connected PTSD or other service-connected disabilities. The matters are REMANDED for the following action: 1. Obtain a VA addendum opinion from an appropriate clinician as to the etiology of any LUE peripheral neuropathy. Whether an additional physical examination is warranted is left to the discretion of the examiner. 2. After a thorough review of the claims file, the examiner should address the following: (a.) Identify whether the Veteran had/has a current diagnosis of LUE peripheral neuropathy. In determining whether the Veteran has signs or symptoms of LUE peripheral neuropathy, the examiner must discuss the September 2013 VA treatment record diagnosing the Veteran with LUE peripheral neuropathy. (b.) If the Veteran has a current diagnosis of LUE peripheral neuropathy, provide an etiology opinion as to whether it had onset during or was otherwise related to service, to include a left wrist injury in service. See June 2017 brief and NIH Public Access Journal Article; see also March 1971 service treatment records. (c.) If the Veteran has a current diagnosis of LUE peripheral neuropathy, provide an opinion as to whether it was caused or aggravated by service-connected diabetes mellitus and/or PTSD, to include medications taken therefor. 3. Obtain an addendum VA medical opinion to determine the nature and etiology of any heart condition. Whether an additional physical examination is warranted is left to the discretion of the examiner. After a thorough review of the claims file, to include a complete copy of this Board remand, the examiner should: (a.) Identify all currently diagnosed heart conditions. (b.) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed heart condition had its clinical onset during the Veteran's period of service, or is otherwise related to such period of service, to include herbicide exposure therein. For the purposes of this opinion, the examiner should presume that the Veteran was exposed to herbicides during service in Vietnam. (c.) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed heart condition was caused or aggravated by a service-connected disability, to include PTSD. The examiner should review, address, and discuss the medical treatise evidence provided in the Veteran's October 2021 and September 2020 briefs. The mere absence of evidence of contemporaneous treatment in the service treatment records cannot, standing alone, serve as the sole basis for an unfavorable opinion. However, it is permissible to consider this as one factor in the determination regarding the origins of the claimed disability, providing there is also sufficient explanation as to why it is reasonable to have expectation of treatment in the circumstance presented. All opinion must be supported by a clear rationale. The examiner is asked to explain in detail the underlying reasoning for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee Feldman, 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.