Citation Nr: 21005731 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 09-06 730 DATE: February 2, 2021 REMANDED The claim for service connection for bilateral lower extremity peripheral neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1962 to July 1965 and from June 1966 to August 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in May 2017, at which time the Board denied the Veteran’s claim for service connection for bilateral lower extremity peripheral neuropathy, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a February 2018 Joint Motion for Remand (Joint Motion), the parties moved the Court to vacate the Board’s May 2017 decision, and in a March 2018 order, the Court granted the Joint Motion and remanded the claim for action consistent with the terms of the Joint Motion. The claim was remanded by the Board for further development in August 2018. The requested development was completed, and the case has been returned to the Board for further appellate action. 1. The claim for service connection for peripheral neuropathy is remanded. While the Board sincerely regrets further delay, another remand is necessary in order to ensure compliance with the terms of the Joint Motion and the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In the February 2018 Joint Motion, the parties agreed that an October 2016 opinion of a VA examiner that the Veteran’s peripheral neuropathy was not directly related to service was not supported by an adequate rationale because it was essentially based on the fact that the Veteran’s peripheral neuropathy did not manifest within one year of his in-service herbicide exposure. In August 2018, the Board remanded the claim in order to obtain a new medical opinion addressing whether the Veteran’s peripheral neuropathy was caused by in-service herbicide exposure. In doing so, the Board directed the examiner to provide a complete rationale for all opinions and advised that he or she may not rely solely on the fact that delayed/late-onset peripheral neuropathy is not recognized by VA as presumptively related to herbicide exposure. In June 2019, a VA examiner reviewed the evidence of record and opined that it was less likely than not that the Veteran’s peripheral neuropathy was incurred in or caused by service, to include as due to herbicide exposure. In support of this, the examiner cited to the definition of “idiopathic sensory peripheral neuropathy,” which indicates that no specific cause is identified in up to 46 percent of patients with polyneuropathy, and noted the significant time gap between the Veteran’s service and his diagnosis. Because the examiner did not actually address herbicide exposure and relied solely on the fact that the Veteran’s neuropathy was diagnosed many years after service, the Board finds that another remand is necessary in order to obtain an opinion that complies with the terms of the prior remand instructions. The matters are REMANDED for the following action: Provide the claims file to an appropriate examiner to obtain a supplemental opinion with respect to the Veteran’s service connection claim for peripheral neuropathy. Do not schedule the Veteran for another examination unless it is deemed necessary to respond the question presented. After a review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the Veteran’s bilateral lower extremity peripheral neuropathy was caused by his presumed in-service herbicide exposure. A complete rationale for all opinions must be provided. In rendering the requested opinion, while the examiner is free to cite to studies by the National Institute of Health or any medical treatises in rendering the opinion, the examiner’s rationale cannot rely solely on the fact that VA has not included delayed/late-onset peripheral neuropathy in the list of presumptive conditions. In other words, the Board needs an opinion as to the likelihood that this Veteran’s peripheral neuropathy, without regard to the conditions VA recognizes as being due to Agent Orange, is nevertheless at least as likely as not related to his exposure to herbicide agents in Vietnam. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.