Citation Nr: 21005604 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-41 619 DATE: February 2, 2021 REMANDED Entitlement to service connection for melanomas, to include as secondary to in-service herbicide exposure, is remanded. Entitlement to service connection for peripheral neuropathy, to include as secondary to in-service herbicide exposure, service-connected PTSD with alcohol use disorder, or diabetes mellitus, type II, is remanded. Entitlement to service connection for below-the-knee amputation of the right leg, to include as secondary to in-service herbicide exposure or diabetes mellitus, type II. REASONS FOR REMAND The Veteran served on active duty from February 1968 to December 1971. In January 2018, the Veteran presented sworn testimony to the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board). A transcript of the hearing has been associated with the claims file. In March 2018, the Board remanded these issues to the VA Regional Office (RO) for additional development; the claims file has been returned to the Board for adjudication. 1. Entitlement to service connection for melanomas, to include as secondary to in-service herbicide exposure, is remanded. The Veteran, in his August 2016 Substantive Appeal, appears to assert that his melanomas are related to in-service herbicide exposure. His in-service exposure to herbicides has been established by the Board in its March 2018 adjudication of other claims. To date, there is no clinical or lay evidence of melanomas, including during his September 2020 Disability Benefits Questionnaire DBQ), beyond that of the Veteran’s general claim of entitlement to service connection for the same. The Board, in its March 2018 remand of the claim, sought the Veteran’s relevant outstanding private treatment records. By a July 2018 letter, the RO requested that the Veteran authorize VA to obtain such records, and in February 2020, the Veteran submitted a VA Form 21- 4142, Authorization and Consent to Release Information to VA, for, in pertinent part, his private treatment records from South Shore Hospital. However, of record is a March 2019 Report of Contact indicating that South Shore Hospital informed the RO that they were unwilling to waive the fees associated with submitting the Veteran’s private treatment records. The RO referred to the March 2019 Report of Contact, in its November 2020 Supplemental Statement of the Case (SSOC), as one indicating that the records sought from South Shore Hospital were unavailable. Such a statement did not provide the Veteran with information allowing him to seek his private treatment record and submit them to VA on his own. As it remains possible that relevant outstanding private treatment records could contain evidence of melanomas dated during the appellate period, on remand, the RO should inform the Veteran that South Shore Hospital refused to waive the fees associated with submitting his private treatment records to VA and allow him an opportunity to supplement the claims file with such records himself. 2. Entitlement to service connection for peripheral neuropathy, to include as secondary to in-service herbicide exposure or diabetes mellitus, type II, is remanded. The Board, in its March 2018 remand, discussed that at his January 2018 Board hearing, the Veteran raised the issue of entitlement to service connection for diabetes mellitus, type II, as due to in-service herbicide exposure, exposure conceded by the Board in its March 2018 adjudication of other claims. He asserted that his peripheral neuropathy and below-the-knee amputation of the right leg were related to his diabetes mellitus, type II. In June 2018, resultant to the Board’s remand directives, the RO provided the Veteran the required standardized VA claim form and requested that he return such as to any claim of entitlement to service connection for diabetes melitis, type II; to date, the Veteran has not responded. As the claims are being remanded herein for additional development, on remand, the RO should provide the Veteran another opportunity to file a claim of entitlement to service connection for diabetes mellitus, type II. The Veteran, in his August 2016 Substantive Appeal, asserts that his peripheral neuropathy is related to in-service herbicide exposure. His in-service exposure to herbicides has been established by the Board in its March 2018 adjudication of other claims. In a September 2020 DBQ, the examiner reported both a 2010 diagnosis of polyneuropathy and also that the Veteran had not been diagnosed with peripheral neuropathy. The Veteran reported peripheral neuropathy in the bilateral upper extremities and left lower extremity, and reported recent neck surgery, some increased weakness in the right arm, symptoms for at least the last 20 years, tingling and numbness of the arms and numbness in the left foot, the regular use of a wheelchair, cane, and walker, and a long history of chronic alcoholism, chronic back pain, and peripheral vascular disease. When asked if the Veteran had any symptoms attributable to any peripheral neuropathy condition, the examiner responded in the affirmative and reported his pain in the bilateral upper extremities, and paresthesias and/or dysesthesias and numbness in the bilateral upper extremities and left lower extremity. There was reduced strength in the bilateral elbow and wrist and bilateral grip and pinch, and the left knee and ankle. There was decreased sensation in the left foot and toes. There were no special tests conducted to evaluate the median nerves. The nerves of the bilateral upper extremities appeared normal. There was moderate incomplete paralysis in the bilateral sciatic nerve and moderate incomplete paralysis of the right external popliteal, right musculocutaneous, anterior and posterior tibial, internal popliteal, anterior crural, internal saphenous, and obturator nerves. The examiner reported that due to peripheral nerve conditions, there was functional impairment of the right lower extremity such that no effective function remained other than that which would be equally served by amputation with prosthesis and noted the Veteran’s right below-the-knee amputation and related scars. There were no other pertinent findings, complications, conditions, symptoms, or signs. There was no impact on the Veteran’s ability to work. Electromyography (EMG) was not conducted. The examiner reported that while the Veteran had not been diagnosed with peripheral neuropathy, the Veteran asserted that he had early signs of such in his bilateral upper extremities and left lower extremity; the examiner discussed that such could not be attributed for certain to in-service herbicide exposure as such a disability has not been documented and he has many other health conditions that could cause peripheral neuropathy such as diabetes mellitus, type II, chronic alcoholism, and chronic back and neck issues. In this regard, the RO asked the examiner to opine as to whether his peripheral neuropathy was secondary to his newly-service-connected posttraumatic stress disorder with alcohol use disorder. The examiner opined that it was less likely than not that the Veteran’s peripheral neuropathy was secondary to alcohol use disorder as the Veteran had not been diagnosed with peripheral neuropathy, that he had surgical treatment in December 2019 for cervical stenosis which could cause nerve pain in the arms which was not present during the sensory portion of the examination, that there was slight triceps weakness in the right arm due to injury, and there was no peripheral neuropathy findings in the left lower extremity. The examiner discussed that the she could not determine which nerves were affected as EMG testing had not been conducted, that Veteran was a poor historian and suffered from many ailments that could give him the sensation of tingling in the extremities, including chronic alcohol use, diabetes mellitus, type II, neck trauma and stenosis, and malnourishment, and that she could thus not determine the cause of his reported symptoms of neuropathy. The September 2020 VA examination is inadequate as it pertains to determining if there exists a current disability, peripheral neuropathy of any extremity. The VA examiner reported both that the Veteran had been diagnosed with polyneuropathy in 2010 and also that there was no peripheral neuropathy. While a diagnosis of polyneuropathy in 2010 is dated years prior to the Veteran’s current claim, filed in 2015, it is significant that he has reported early symptoms and has presented with symptoms recorded on examination. Also, while the VA examiner concluded that the Veteran had not been diagnosed with peripheral neuropathy, she also reported that he presented with symptoms attributable to any peripheral neuropathy condition and specifically noted the Veteran’s pain in the bilateral upper extremities, and paresthesias and/or dysesthesias and numbness in the bilateral upper extremities and left lower extremity. There was also reduced strength in the bilateral elbow and wrist and bilateral grip and pinch, and the left knee and ankle, and decreased sensation in the left foot and toes. There was also moderate incomplete paralysis in a number of nerves of the right lower extremity and it is unclear if any such nerves are those not impacted by the Veteran’s right below-the-knee amputation. The examiner also reported that due to peripheral nerve conditions, there was functional impairment of the right lower extremity such that no effective function remained other than that which would be equally served by amputation with prosthesis. Also, it is significant that EMG testing, or any testing deemed appropriate in order to render a definitive diagnosis, was not conducted. The examiner specifically reported that the she could not determine which nerves were affected as EMG testing had not been conducted. As such, on remand, the RO should afford the Veteran an adequate VA examination of his claimed peripheral neuropathy, considering his long-term symptoms and any functional impairment therefrom. As the initial inquiry as to whether the Veteran has a diagnosis related to his claimed peripheral neuropathy, the Board need not address the adequacy of any etiological opinions rendered by the VA examiner in the September 2020 DBQ and will seek such herein. Further, while the Veteran is not currently service-connected for diabetes mellitus, type II, he is service-connected, by the September 2020 rating decision, for PTSD with alcohol use disorder. The examiner, in September 2020, raised the issue of whether the Veteran’s claimed peripheral neuropathy is secondary to such; the Board seeks an adequate etiological opinion in this regard herein. On remand, the RO should send the Veteran adequate notice as to his claim of entitlement to service connection for peripheral neuropathy on a secondary basis, considering his service-connected PTSD with alcohol use disorder. 3. Entitlement to service connection for below-the-knee amputation of the right leg, to include as secondary to in-service herbicide exposure or diabetes mellitus, type II. The Veteran, in his November 2015 Notice of Disagreement (NOD) and August 2016 cover letter to his Substantive Appeal, referred to his disability as “right leg before-the-knee amputation status-post frostbite.” During his January 2018 Board hearing, the Veteran asserted that his below-the-knee amputation of the right leg was related to frostbite, but that it was secondary to diabetes mellitus, type II, as such impacts the circulation of the foot and a simple frostbite, not even a cold foot, turned into full amputation. No party asserts that the Veteran incurred frostbite during service. During VA treatment, in July 2002, however, the Veteran asserted that he injured his leg “in the war.” VA treatment records dated in April 1992 indicate that admitted for prosthetic training, with a long history of peripheral vascular disease, dating back to at least 1988, with a history of right femoral to posterior tibial/dorsalis pedis in February 1988, two toe amputations, and a right transmetatarsal amputation in July 1991 with pain and poor wound healing necessitating a below-the-knee amputation in November 1991, complicated by wound infection. During VA treatment in May 1992, the Veteran presented status-post below-the-knee amputation for frostbite damage, previously thought to be second to atherosclerosis. During VA treatment in July 2002, the Veteran asserted that he injured his leg “in the war,” and reported that eventually, in addition, because of his occupation as a ship builder, frostbite set it, and he had an initial toe amputation and then a transmetatarsal amputation and then the present below-the-knee amputation. In a September 2020 DBQ, the Veteran presented right below-the-knee amputation, 1991, to which the Veteran related some vascular surgery and peripheral vascular disease, then infection. He reported the regular use of a wheelchair, cane, and walker. The Veteran was also diagnosed with Buerger’s disease, 1991, described as type of vascular disease thrombo-angiitis obliterans. The examiner reported amputation due to the vascular disease and infection. The examiner reported that the Veteran was too weak and irritated to comply with any testing on physical examination. There were no other physical findings, complications, conditions, signs, or symptoms, there was no impact on the ability to work. The examiner opined that the Veteran’s right below-the-knee amputation was not directly related to or incurred in or caused by in-service herbicide exposure and reasoned that the Veteran had documented issues with peripheral vascular disease in the right leg, with surgeries to correct the same, and resulting infection which led to amputation. The examiner concluded that no medical nexus could be established, that while the Veteran stated that he also had frostbite in the right lower extremity, there were no records to verify if such was related to the amputation and such is more likely solely related to the infection not going away and continuing to be recurrent and dangerous. The September 2020 VA opinion is inadequate. The Board, in its March 2018 remand, directed the RO to obtain an etiological opinion as to the likelihood that the disability that necessitated the amputation, as opposed to the right below-the-knee amputation itself, was related to service, specifically, in-service herbicide exposure. On remand, the RO should obtain an adequate etiological opinion that responds to the Board’s inquires. The most recent VA treatment records available for Board review are dated in November 2020; on remand, the RO should obtain and associated with the claims file the Veteran’s updated VA treatment records. (Continued on the following page) The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2020 to the present. 2. Send the Veteran adequate notice as to his claim of entitlement to service connection for peripheral neuropathy on a secondary basis, considering his service-connected PTSD with alcohol use disorder. 3. Inform the Veteran that in May 2019, South Shore Hospital informed the RO that they refused to waive the fees associated with submitting the Veteran’s private treatment records to VA; inform the Veteran that he may submit such records on his own behalf is he so chooses. 4. Inform the Veteran that at his Board hearing in January 2018, he raised the issue of entitlement to service connection for diabetes mellitus, type II, to include as secondary to in-service herbicide exposure, and to date, he has not responded to the RO’s June 2018 request that he file the required standardized VA Form to file such a claim; provide the Veteran another opportunity to file a claim of entitlement to service connection for diabetes mellitus, type II, to include as secondary to in-service herbicide exposure. 5. Then, and only if, the Veteran’s updated VA treatment records or any new private treatment records submitted by the Veteran, are positive for complaints, treatment, or diagnosis of a skin disability, including, but not limited to, melanomas and/or the residuals thereof, schedule him for a VA examination of his skin. The claims file must be made available to the examiner for review. All necessary tests should be conducted. A complete rationale should be provided for all opinions given. If the requested opinion cannot be provided without resorting to mere speculation, the VA examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. (a) The examiner should identify all skin disabilities during the course of the appeal, including, but not limited to, melanomas and/or the residuals thereof, found present on examination or noted in the Veteran’s recently submitted private treatment records. (b) For any skin disabilities, including, but not limited to, melanomas and/or the residuals thereof, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that such current skin disability had its clinical onset during active service or is related to any incident of service, specifically, the Veteran’s conceded in-service herbicide exposure. 6. Schedule the Veteran for an appropriate VA examination(s) of his upper and lower extremities, i.e., neurological, vascular, etc. The claims file must be made available to the examiner(s) for review. All necessary tests should be conducted, specifically, the EMG noted by the VA examiner who submitted the September 2020 DBQ of the Veteran’s claimed peripheral neuropathy. A complete rationale should be provided for all opinions given. If the requested opinion cannot be provided without resorting to mere speculation, the VA examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. (a) The examiner should identify all current neurological disorders of the upper and lower extremities found to be present during the course of the appeal, to include any neuropathy, peripheral neuropathy, or polyneuropathy, considering the Veteran’s lay statements of long-standing symptoms, described as tingling and numbness, VA and private treatment for such, and his symptoms reported in the September 2020 DBQ, specifically, symptoms deemed attributable by the VA examiner to a peripheral neuropathy condition, his pain in the bilateral upper extremities, and paresthesias and/or dysesthesias and numbness in the bilateral upper extremities and left lower extremity, as well as his reduced strength in the bilateral elbow and wrist and bilateral grip and pinch, and the left knee and ankle, his decreased sensation in the left foot and toes, and his moderate incomplete paralysis in a number of nerves of the right lower extremity. In this regard, as to the issue of whether the Veteran has a diagnosis of peripheral neuropathy, the examiner must consider and discuss, if he or she determines that such a diagnosis is not warranted, his symptoms, whether his reported numbness and tingling and his demonstrated pain in the bilateral upper extremities, and paresthesias and/or dysesthesias and numbness in the bilateral upper extremities and left lower extremity, as well as his reduced strength in the bilateral elbow and wrist and bilateral grip and pinch, and the left knee and ankle, his decreased sensation in the left foot and toes, and his moderate incomplete paralysis in a number of nerves of the right lower extremity, represents pain that results in functional impairment which may constitute a disability, even in the absence of an underlying diagnosis. (b) The examiner must opine as to whether the Veteran’s statements of long-standing symptoms, and VA and private treatment for such, represents “early-onset” peripheral neuropathy pursuant to 38 C.F.R. § 3.309 (e). (c) The examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that any current neurological disorders of the upper and lower extremities had its clinical onset during active service or is related to any incident of service, specifically, the Veteran’s conceded in-service herbicide exposure. (d) The examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the current neurological disorders of the upper and lower extremities is/are: (1) proximately due to the Veteran’s alcohol use disorder, part of his service-connected PTSD with alcohol use disorder, and/or his diabetes mellitus, type II, or peripheral vascular disease, or (2) aggravated beyond its natural progression by his alcohol use disorder, part of his service-connected PTSD with alcohol use disorder, and/or his diabetes mellitus, type II, or peripheral vascular disease. In this regard, the examiner is reminded that the Veteran’s alcohol use disorder, part of his service-connected PTSD with alcohol use disorder, and/or his diabetes mellitus, type II, or peripheral vascular disease, need not be a sole proximate cause or aggravating factor, the likelihood of such a relationship need only be 50 percent or more. (e) The examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the disability that necessitated the right below-the-knee amputation, including, but not limited, peripheral vascular disease or diabetes mellitus, type II, had its clinical onset during active service or is related to any incident of service, specifically, any in-service right leg injury incurred during “the war” reported by the Veteran during the examination, and/or his conceded in-service herbicide exposure. (f) The examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the disability that necessitated the right below-the-knee amputation, including, but not limited, peripheral vascular disease, is/are: (1) proximately due to the Veteran’s diabetes mellitus, type II, or (2) aggravated beyond its natural progression by his diabetes mellitus, type II. In this regard, the examiner is reminded that the Veteran’s diabetes mellitus, type II, need not be a sole proximate cause or aggravating factor, the likelihood of such a relationship need only be 50 percent or more. (Continued on the next page) In this regard, the examiner must consider and address the Veteran’s assertion of the chain of events leading to his right below-the-knee amputation, specifically, that he incurred diabetes mellitus, type II, from his in-service exposure to herbicides, and that such led to peripheral vascular disease, or otherwise made it difficult to overcome frostbite so that he required surgical treatment that resulted in infection, necessitating a right below-the-knee amputation. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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. § 20.130