Citation Nr: 21005947 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 18-13 178 DATE: February 2, 2021 REMANDED Entitlement to service connection for right lower extremity peripheral neuropathy secondary to herbicide exposure is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy secondary to herbicide exposure is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to June 1970. T This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision of the Department of Veteran Affairs (VA) Regional Office. In August 2020, the Veteran presented testimony at a video hearing before the undersigned Veterans Law Judge (VLJ). 1. Entitlement to service connection for right lower extremity peripheral neuropathy secondary to herbicide exposure is remanded. 2. Entitlement to service connection for left lower extremity peripheral neuropathy secondary to herbicide exposure is remanded. The Veteran contends that service connection is warranted for peripheral neuropathy of the right and left lower extremities based on exposure to herbicides during the Veteran’s service in the Republic of Vietnam. The Veteran was afforded a VA examination in May 2017 which shows that the Veteran was diagnosed with sensory motor axonal peripheral neuropathy of the lower extremities. After a review of the evidence of record, the examiner remarked that the peripheral neuropathy of the bilateral lower extremities was not due to military service, explaining that to establish service connection for the disability due to herbicide exposure the onset would need to have occurred within one to two years after separation from service, but here, the Veteran’s symptoms did not onset until July 2016. An October 2017 VA treatment record shows that the Veteran was diagnosed with peripheral neuropathy of the lower extremities. The treating VA podiatrist noted that the Veteran reported his neurologist and primary provider felt that this condition could be Agent Orange linked and the treating VA podiatrist agreed. The treating podiatrist reported that it was as likely as not the peripheral neuropathy of the bilateral lower extremities was caused by Agent Orange exposure. No explanation was provided. A November 2018 letter from the Veteran’s VA podiatrist shows that the Veteran was diagnosed with peripheral neuropathy. The VA podiatrist remarked that peripheral neuropathy had many causes such as diabetes mellitus, alcoholism, certain medications, vitamin deficiencies, trauma, and exposure to toxins. The VA podiatrist noted that the Veteran reported he was exposed to Agent Orange during service and as whether this was the cause of the peripheral neuropathy, they were unsure. The VA podiatrist cited to a medical study that showed there was limited or suggested evidence of an association between herbicide exposure and early onset peripheral neuropathy that may be persistent. A November 2019 letter from the Veteran’s VA podiatrist notes that it was more likely than not that his neuropathy was caused by exposure to Agent Orange. No explanation was provided. The Board notes that early-onset peripheral neuropathy is included as an enumerated disease associated with herbicide exposure under VA regulatory criteria; however delayed-onset peripheral neuropathy is not recognized under VA regulatory criteria as a disease associated with herbicide exposure. For these reasons, presumptive service connection under 38 C.F.R. § 3.309 (e) is warranted only when the peripheral neuropathy was manifested to a degree of 10 percent or more within one year after the date of last herbicide exposure, and such is not shown here. However, service connection for peripheral neuropathy based on herbicide agent exposure may still be granted with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Upon review, the May 2017 VA opinion is inadequate as the examiner did not provided any opinion as to whether the Veteran’s peripheral neuropathy was caused by herbicide exposure based on a direct theory of service connection. Here, the VA examiner based the negative nexus opinion on the fact that the condition did not onset with the first year after separation from service. Additionally, while the Veteran has provided letters from his treating VA podiatrists that report his peripheral neuropathy is due to Agent Orange exposure. The Board finds that these opinions are not sufficient to grant service connection as these opinions were provided without any rationale, and are of limited probative value. As such, a remand is warranted for a new opinion that addresses whether the Veteran’s currently diagnosed peripheral neuropathy of the lower extremities is caused by his in-service herbicide exposure on a direct basis. 3. Entitlement to a compensable rating for bilateral hearing loss is remanded. Remand is required for a current examination. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). Regarding the Veteran’s claim for entitlement to a compensable rating for bilateral hearing loss, the Veteran was last provided a VA audiological examination in May 2017. At the August 2020 Board hearing, the Veteran testified that his hearing had worsened since the May 2017 VA audiological examination. As it has been more than three years since that last examination and as the Veteran has asserted a worsening of his service-connected bilateral hearing disability, this matter must be remanded for a current examination. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the nature and etiology of the Veteran’s bilateral lower extremity neuropathy. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. Opine as to whether it is at least as likely as not that the Veteran’s neuropathy of the bilateral lower extremities is related to his active duty service, to include his presumed in-service herbicide agent exposure. The examiner is reminded that the absence of a disease from the presumptive list does not preclude a Veteran from otherwise proving that his disability resulted from exposure to herbicide agent. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of his hearing loss. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail. An explanation for all opinions expressed must be provided. The appropriate Disability Benefits Questionnaire (DBQ) must be utilized. The examiner must fully describe the functional effects caused by hearing disability. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.