Citation Nr: 21076246 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 13-21 939 DATE: December 22, 2021 ORDER Entitlement to an initial disability rating of 50 percent, but no higher, for posttraumatic stress disorder (PTSD), from June 9, 2009 through April 17, 2018, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a disability rating in excess of 70 percent for PTSD, from April 18, 2018, is denied. REMANDED Entitlement to service connection for bilateral upper extremity peripheral neuropathy, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as due to herbicide agent exposure, is remanded. Entitlement to total disability rating based on individual unemployability (TDIU), from June 9, 2009 through April 17, 2018, is remanded. FINDINGS OF FACT 1. From the June 9, 2009 effective date of service connection through April 17, 2018, the Veteran's PTSD symptoms more closely approximated occupational and social impairment with reduced reliability and productivity, but did not more closely approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. From April 18, 2018, the Veteran's PTSD symptoms have not more closely approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 50 percent, but no higher, from June 9, 2009 through April 17, 2018, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating in excess of 70 percent, from April 18, 2018, for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to August 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from May 2005 and March 2010 rating decisions. In the May 2005 rating decision, the agency of original jurisdiction (AOJ) granted the application to reopen the previously denied claims of service connection for bilateral upper extremity and lower extremity peripheral neuropathy, but denied the claims on the merits. In August 2005, VA received the Veteran's Notice of Disagreement (NOD). In December 2005, the AOJ issued a Statement of the Case (SOC). Within 60 days of receipt of the December 2005 SOC, VA received new and material evidence in support of the claims of service connection for bilateral upper and lower extremity peripheral neuropathy. See Dr. Briggs report received on January 10, 2006. Accordingly, the May 2005 rating decision did not become final. Similarly, the April 2004 rating decision that denied the Veteran's initial claims of service connection for bilateral upper and lower extremity peripheral neuropathy and a subsequent October 2004 rating decision for the same issues did not become final. Specifically, VA received new and material evidence, in the form of additional VA and relevant private treatment records, within one year of notification of the April 2004 rating decision. Thereafter, in the October 2004 rating decision, the AOJ reopened and denied the claims of service connection for bilateral upper and lower extremity peripheral neuropathy on the merits. As noted above, the May 2005 rating decision, which was issued within one year of notification of the October 2004 decision, concluded that further new and material evidence had been received in support of the claims of service connection for bilateral upper and lower extremity peripheral neuropathy. In the March 2010 rating decision, the AOJ granted service connection for PTSD and assigned an initial disability rating of 10 percent, effective June 9, 2009, and denied reopening of the previously denied claims of service connection for bilateral upper and lower extremity peripheral neuropathy. In May 2010, VA received the Veteran's NOD. In a June 2013 rating decision, the AOJ increased the disability rating for the service-connected PTSD from 10 percent to 30 percent, effective April 25, 2013. In July 2013, the AOJ issued an SOC for the issues of service connection for bilateral upper and lower extremity peripheral neuropathy. In August 2013, VA received the Veteran's VA Form 9 to the Board. Given that the May 2005 rating decision did not become final, this VA Form 9 operated as a substantive appeal of the May 2005 decision. See also September 2015 Board decision at 2-3. In January 2014, the AOJ issued an SOC for the issue of entitlement to a higher initial rating for the service-connected PTSD. In February 2014, VA received the Veteran's VA Form 9 appeal to the Board. In September 2015, the Board remanded the case for further development and adjudicative action. In the decision, the Board inferred a claim for a TDIU as part and parcel of the appeal for a higher initial rating for PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009). In a May 2018 rating decision, the AOJ increased the disability rating for the service-connected PTSD from 30 percent to 70 percent, effective April 18, 2018, and granted entitlement to a TDIU, also effective April 18, 2018. In September 2018, the Board again remanded the case for further development and adjudicative action. Higher Initial Rating 1. Entitlement to an initial disability rating in excess of 10 percent for PTSD for the period on appeal prior to April 25, 2013. 2. Entitlement to a disability rating in excess of 30 percent for PTSD for the period on appeal from April 25, 2013 through April 17, 2018. 3. Entitlement to a disability rating in excess of 70 percent for PTSD for the period on appeal from April 18, 2018. The Veteran contends that a 70 percent disability rating is warranted for his service-connected PTSD for the entire period on appeal because symptoms demonstrated during an April 2018 VA examination, which supported the assignment of a 70 percent rating, were consistent with his symptoms during the entire period on appeal. See June 2018 Veteran statement. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the Veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 10 percent rating contemplates occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent disability rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is prescribed for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent rating is prescribed for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the Veteran's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In other words, under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The analysis must include a determination as to whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). As an initial matter, the Board's September 2015 remand directives included an instruction for the AOJ to provide a new VA examination for the Veteran's PTSD and for the VA psychiatric examiner to include a global assessment of functioning (GAF) score in the examination report. See September 2015 Board decision at 9. However, in a May 2018 opinion, an examining psychologist stated that the "requested GAF score is part of the multiaxial DSM-IV classification system for mental disorders, which was superseded five years ago with the publication of DSM-5." The examiner noted that the DSM-5 stated that "the GAF score was dropped for several reasons, including its conceptual lack of clarity ... and questionable psychometrics in routine practice." As such, the examiner concluded that inclusion of a GAF score in the examination report would be "inappropriate." However, given that the current appeal predates the date of VA implementation of the DSM-5, August 4, 2014, both the DSM-IV, to include its use of GAF scores, and DSM-5 may apply to the current appeal, as the appeal was certified to the Board on April 17, 2014. See Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093-94 (Aug. 4, 2014); see also April 2014 VA Form 8. Nonetheless, the Veteran has asserted that use of GAF scores is unnecessary to decide the claim. See June 2018 Veteran statement. Indeed, with regard to a rating analysis for psychiatric disorders, "symptom[s] should be the fact finder's primary focus when deciding entitlement to a given disability rating." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013); Golden v. Shulkin, 29 Vet. App. 221, 225-26 (2018) (holding that "to the extent that the Board may have been tempted to use numerical GAF scores as a shortcut for gauging psychiatric impairment, such use would be error."). Accordingly, and given the May 2018 examiner's well-reasoned opinion regarding the deficiencies of GAF scores for use in psychiatric evaluation, failure by the examiner to provide a GAF score in the examination report constitutes harmless error. Overall, the Board finds that the AOJ substantially complied with all of the Board's pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Turning to the facts of the case, in an August 2009 statement, the Veteran reported symptoms of "excessive memory loss, e.g. forgetting dates, [appointments], things I am supposed to do, and completing tasks" as well as "nightmares, flashbacks, disturbances of motivation and mood, and sleep impairment." The Veteran received an initial VA examination for his PTSD in November 2009. During the examination, the Veteran reported that he "can't sleep" and had "a lot of nightmares" relating to his wartime experiences, occurring "two to three times a night." He stated that he could no longer sleep in the same bed as his wife because he would accidentally "beat her up at night" in his sleep. He indicated that he "does get startled easily by jets and fighter planes." The Veteran avoided large stores and, when going out to eat, would typically sit in a corner. Behavior and speech were "within normal limits" during the examination. Mood was "euthymic," and affect was "appropriate to content." Thought processes were "logical and tight" and there was "no loosening of associations" or confusion. Memory was "grossly intact" and the Veteran was "oriented in all spheres." The Veteran denied hallucinations or delusions and homicidal or suicidal ideation. Finally, his insight and judgment were "adequate." Overall, the examiner opined that the Veteran's PTSD symptoms were "mild" and did not "negatively impact employment in any way." In May 2010, the Veteran reported that he worked "12+ hour days" in an attempt to avoid his PTSD symptoms. Vet Center progress note dated May 19, 2010. However, that month, he denied suicidal or homicidal ideation, and no slowed thinking, affective lability, or memory impairment was noted. Vet Center progress note dated May 24, 2010. In a June 2010 letter, a treating social worker noted that the Veteran "endorses symptoms of intrusive thoughts, issues with anger/irritability, feeling nervous and anxious, hyper alertness, and a sense of loss of control as it relates to how he will react when faced with stressful or anxiety provoking circumstances." The social worker concluded that the Veteran's PTSD symptoms "significantly interfered with his personal and social relationships as he is guarded with those close to him and isolates via avoiding developing friendships and experiences difficulties in social venues." However, the Veteran was "very cooperative and engage[d] well in his group therapy sessions." V.M., MSW, LCSW, Vet Center letter dated June 4, 2010. In an August 2010 statement, the Veteran's son stated that the Veteran's "logic of thinking" had worsened "within the past year" and "[h]is responses are often difficulty for me to understand." The letter also recounted symptoms of inability to concentrate "or make sound decisions." Son letter dated August 17, 2010. An August 2010 statement from the Veteran's wife indicates that the Veteran had "admitted to me before that he has thoughts of suicide" and recently had been experiencing "depressed moods." She indicated that the Veteran's responses to questions could be illogical and that the Veteran tended to isolate from family and friends. Additionally, the Veteran's wife indicated that the Veteran neglected his appearance by "not combing his hair and it doesn't bother him if his clothes are disheveled." She noted that the Veteran became "agitated and panicky" in crowds of "6 or more people." Regarding memory impairment, the Veteran's wife stated that the Veteran "forgets to do even the minor chores" and makes nonsensical judgments. She also indicated that the Veteran got "very argumentative with me often." The Veteran's wife noted that the Veteran could become obsessed with completing certain projects, often neglecting to eat or take breaks. Finally, the Veteran's wife confirmed that she had been woken up by the Veteran "flailing his arms or kicking his feet" in bed. Furthermore, in September 2010, the Veteran reported worsening of his PTSD symptoms, particularly with regard to increased irritability. See Vet Center progress note dated September 1, 2010. An October 2010 VA treatment note indicates that the Veteran's short and long-term memory was "intact." The Veteran was oriented to time, person, and place and did not appear depressed or anxious at the time of this visit. See VA Pain Assessment dated October 6, 2010. Additionally, a December 2010 treatment note indicates that the Veteran had "a positive attitude about life" and "good future orientation." Vet Center progress note dated December 1, 2010. A February 2011 treatment note shows that the Veteran's mental status was "normal"; there was no evidence of anxiety, depression, disturbed sleep, slowed thinking, speech difficulty, or irritability/aggression with little to no provocation. See Vet Center, Intake Assessment dated February 23, 2011. The Veteran next received a VA examination for his PTSD in April 2013. Symptoms noted during the examination included anxiety, chronic sleep impairment, and disturbances of motivation and mood. Regarding occupational and social impairment, the examiner opined that the Veteran's PTSD symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. A June 2014 VA treatment record indicates that the Veteran's short and long-term memory was intact and that he was alert and oriented. VA primary care note dated June 4, 2014. VA treatment records from February and October 2015 noted similar findings. During the February 2015 primary care visit, the Veteran denied suicidal or homicidal ideation. See VA primary care notes dated February 12, 2015 and October 28, 2015. A March 2015 VA treatment record shows that the Veteran continued to struggle with sleep and sleep-related anxiety. However, the Veteran was neatly dressed and groomed during the examination and was described as goal-oriented, logical, and coherent with no audio/visual hallucinations or delusions. See VA mental health consult dated March 9, 2015. VA treatment records from April, June, August, October, and December 2015 provided findings similar to those noted in the March 2015 VA treatment note. See VA addendums dated April 24, 2015, June 12, 2015, October 5, 2015, and December 18, 2015; VA mental health note dated August 6, 2015. In June 2016, the Veteran reported continued problems with sleep impairment and "hyperstartle" symptoms. See VA mental health note dated June 22, 2016. However, an August 2016 VA treatment record also indicated that affect was appropriate, and judgment and insight were intact. See VA primary care note dated August 31, 2016. During a November 2016 visit, the Veteran again appeared neatly dressed and groomed. He did not report suicidal or homicidal ideation and thought processes during the visit were goal-directed, logical, and coherent with no evidence of audio/visual hallucinations. Mood was "pretty good"; however, the Veteran reported that his sleep impairment remained "problematic." VA addendum dated November 15, 2016. In March 2017, the Veteran's appearance was described as "neat and clean." Vet center progress note dated March 29, 2017. The Veteran most recently received a VA examination for his PTSD on April 18, 2018. During the examination, the Veteran reported sleeping only "2 to 3 hours" per night. Furthermore, the Veteran reported "trouble paying attention to what's going on," including trouble with names and remembering to perform tasks. He reported that he "[s]ometimes feels nervous, tense, or worried" and has "to try to keep from getting angry, because if I get angry, I can't control it." The Veteran indicated that he "can get violent at times" when angry. Symptoms noted by the examiner included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short-and long-term memory, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Overall, the examiner opined that the Veteran's PTSD symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Based on the foregoing, an initial disability rating of 50 percent, but no higher, for the service-connected PTSD for the period from the June 9, 2009 effective date of service connection through April 17, 2018 is warranted. However, a disability rating in excess of 70 percent for PTSD for the period on appeal from April 18, 2018 is not warranted. Regarding the period prior to April 18, 2018, the evidence is at least evenly balanced as to whether the Veteran's PTSD symptoms more closely approximated occupational and social impairment with reduced reliability and productivity. Specifically, prior to April 18, 2018, the Veteran experienced symptoms including impaired impulse control, irritability, chronic sleep impairment, nightmares, hypervigilance, anxiety, depressed mood, and, based on the statements of the Veteran's relatives, at least some level of memory loss, circumlocutory speech, and impaired judgment. Furthermore, as noted by the Veteran's treatment provider in the June 2010 letter, the Veteran's PTSD symptoms significantly impacted his social and personal relationships; this is consistent with difficulty in establishing and maintaining effective work and social relationships. Notably, the November 2009 examiner for the Veteran's PTSD only commented on occupational impairment. However, the General Rating Formula for Mental Disorders contemplates both occupational and social impairment. 38 C.F.R. § 4.130, Diagnostic Code 9411. Accordingly, more probative value is assigned to the April 2013 examiner's opinion that the Veteran's PTSD symptoms resulted in occupational and social impairment with reduced reliability and productivity. Accordingly, and resolving reasonable doubt in the Veteran's favor, the criteria for an initial disability rating of 50 percent for PTSD, from June 9, 2009 through April 17, 2018, have been met. Nonetheless, prior to April 18, 2018, an initial disability rating in excess of 50 percent for the service-connected PTSD is not warranted. In this regard, prior to April 18, 2018, the preponderance of the evidence shows that the Veteran's PTSD symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Although the Veteran's wife indicated that the Veteran had mentioned thoughts of suicide at some time during the past, numerous treatment notes and the two VA examinations dated prior to April 18, 2018 indicate that the Veteran consistently denied suicidal or homicidal ideation. Furthermore, contrary to the assertions by the Veteran's wife and son that the Veteran's speech could become illogical or nonsensical, the Veteran presented with logical and goal-directed thought processes during several examinations and numerous visits to treatment providers, and a February 2011 VA treatment note indicates that the Veteran did not have speech difficulties. This is inconsistent with speech intermittently illogical, obscure, or irrelevant as contemplated by the 70 percent rating criteria. Moreover, the Veteran appeared clean and well-groomed at VA examinations and visits with VA treatment providers. This is inconsistent with neglect of personal appearance and hygiene as contemplated by the 70 percent rating criteria. Although the Veteran endorsed irritability prior to April 18, 2018, there is no evidence of impaired impulse control with symptoms including unprovoked irritability with periods of violence; conversely, the February 2011 VA treatment note discussed above indicates that the Veteran's PTSD did not result in impaired impulse control with periods of violence upon little to no provocation. Furthermore, prior to April 18, 2018, there is no evidence of obsessional rituals which interfere with routine activities; although the Veteran's wife noted that the Veteran could become obsessed with certain projects, VA examinations and treatment records failed to document any obsessional rituals performed by the Veteran. Moreover, there is no evidence of near-continuous panic or depression affecting the ability to function independently; spatial disorientation; or inability to establish and maintain effective relationships. Although there is evidence of difficulty in adapting to stressful circumstances (including work or a work like setting), for which the June 2010 letter from a care provider is most probative, the remainder of the Veteran's symptoms more closely approximate the criteria for the 50 percent rating. Accordingly, prior to April 18, 2018, the criteria for a 70 percent rating for the Veteran's PTSD are not more nearly approximated. Furthermore, from April 18, 2018, a disability rating in excess of 70 percent for the service-connected PTSD is not warranted. Specifically, from April 18, 2018, the Veteran's PTSD symptoms have not more nearly approximated total social and occupational impairment. The Veteran's PTSD has not been manifested by any of the following symptoms during the period on appeal: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or other symptoms of similar severity. Notably, with regard to the entire period on appeal, the Veteran has been married and has conducted himself appropriately throughout VA treatment and during the examinations of record. Treatment providers have found the Veteran to be articulate, logical, and thoughtful in response to questions. He has remained respectful and responsive to treatment providers throughout the course of his treatment. During the period on appeal, the Veteran has pursued hobbies such as working on cars, gardening, hiking and camping. Accordingly, both total occupational and social impairment is not demonstrated. There is no evidence that the Veteran's PTSD has worsened since his last VA examination in April 2018. Accordingly, the criteria for a 100 percent rating for the Veteran's PTSD are not more nearly approximated. As a final point, the Board notes that in conjunction with the appeal for a higher initial rating for PTSD, other than the issue of entitlement to a TDIU prior to April 18, 2018 which is discussed below, neither the Veteran nor his representative has raised any other related issues, nor have any other such issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to service connection for bilateral upper extremity peripheral neuropathy, to include as due to herbicide agent exposure. 2. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as due to herbicide agent exposure. At the outset, in the September 2018 remand, the Board sought an initial VA examination for the Veteran's bilateral upper and lower extremity peripheral neuropathy. Furthermore, the examiner was instructed to opine whether the bilateral upper and lower extremity peripheral neuropathy was at least as likely as not related to an in-service injury, event, or disease, including exposure to tactical herbicides. The Veteran's service in Vietnam is well-documented; he received the Vietnam Service Medal and Vietnam Campaign Medal for his service. See DD Form 214 received on September 30, 1971. Personnel records indicate that the Veteran was stationed in Vietnam from approximately July 1968 to August 1969. See Record of Assignments uploaded on October 20, 2009. Of record are a September 2019 VA examination and opinion for the bilateral upper and lower extremity peripheral neuropathy. In this examination report, the examiner provided a diagnosis of peripheral neuropathy of the bilateral upper and lower extremities and noted that the Veteran's symptoms began in the 1990s, with the Veteran starting to "lose control in his legs and ... fall." However, in the accompanying opinion, the examiner opined only that the Veteran's bilateral upper and lower extremity peripheral neuropathy was less likely than not related to herbicide agent exposure. The examiner reasoned that "it appears in order to able to consider service connected (sic) for agent orange herbicides the veteran has to have symptoms documented within one year or exposure." According to this examiner, there was no such evidence. Service connection for early-onset peripheral neuropathy due to exposure to herbicides is available on a presumptive basis if the neuropathy becomes manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Nonetheless, a veteran is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this case, despite explicit instructions by the September 2018 remand to consider direct causation, the September 2019 examiner failed to do so. As such, there is noncompliance with the September 2018 remand and an additional remand is warranted for a new VA opinion that addresses this theory of entitlement. See Stegall v. West, 11 Vet. App. 268 (1998). Furthermore, the Veteran has stated that he has experienced "continual problems of numbness and tingling from the early 1970's until now." He claimed that he had reported his symptoms to medical providers "but they would not recognize my problem." August 2005 Veteran statement. The September 2019 examination report provides no indication that this lay evidence was considered. Accordingly, on remand, the VA opinion should address this continuity evidence. Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Central Arkansas Healthcare System (dated to May 2019) and the VA Mountain Home Healthcare System (dated to January 2020). Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 3. Entitlement to a TDIU, from June 9, 2009 through April 17, 2018. The claim for a TDIU prior to April 18, 2018 is inextricably intertwined with the longstanding claims of service connection for bilateral upper and lower extremity peripheral neuropathy. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). In this regard, the Veteran has stated that he was "forced to retire because of neuropathy." November 2009 VA psychiatric examination report. Social Security Administration (SSA) records indicate that the Veteran has been disabled since March 28, 2005, with a primary diagnosis of "diabetic or other peripheral neuropathy." See SSA Disability Determination received on May 19, 2005. Given the above, adjudication of the claim for assignment of a TDIU prior to April 18, 2018 must be deferred pending additional development of the claims of service connection for bilateral upper and lower extremity peripheral neuropathy. Also, all outstanding VA treatment records should be secured upon remand. In remanding this matter, no finding is made, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records from the VA Central Arkansas Healthcare System for the period since May 2019; the VA Mountain Home Healthcare System for the period since January 2020; and all such relevant records from any other sufficiently identified VA facility. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain a VA opinion from an appropriate clinician regarding whether the Veteran's bilateral upper and lower extremity peripheral neuropathy is related to service. The claims file, including a copy of this Remand, must be made available to the clinician and the clinician must indicate that the claims file was reviewed in the examination report. If deemed necessary by the clinician, the clinician may conduct another VA examination for the bilateral upper and lower extremity peripheral neuropathy. It is stipulated that the Veteran has a current diagnosis of bilateral upper and lower extremity peripheral neuropathy and was last exposed to herbicides (due to service in Vietnam) in August 1969. Furthermore, the clinician is reminded that service connection for bilateral upper and lower extremity peripheral neuropathy due to herbicide exposure may be available on a direct basis, notwithstanding whether the Veteran has early-onset peripheral neuropathy that became manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The clinician must answer the following questions: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's bilateral upper and lower extremity peripheral neuropathy had onset during service or within one year of separation from service, with continuity of symptoms to the present? (b.) Is it at least as likely as not that the Veteran has early-onset bilateral upper and lower extremity peripheral neuropathy that became manifest to a degree of 10 percent or more within a year after the last date on which he was exposed to an herbicide agent during active service? (c.) Is it at least as likely as not that the Veteran's bilateral upper and lower extremity peripheral neuropathy is otherwise related to service, to include due to herbicide agent exposure? The clinician must consider the Veteran's August 2005 statement regarding onset of numbness and tingling in his extremities in the early 1970s. In providing the requested opinion, the clinician should consider the Veteran's reported injury and symptoms in service and thereafter, including the nature of his reported injury and the onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The clinician must provide reasons for each opinion given. In this regard, the clinician is advised that the fact that a specific neurological disability is not on the list of diseases presumed to be associated with exposure to Agent Orange should not be the basis for a negative opinion. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.