Citation Nr: 21006320 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 11-19 725 DATE: February 3, 2021 REMANDED Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, claimed as carpal tunnel syndrome, is remanded. REASONS FOR REMAND The Veteran had active service from November 1988 to November 1992. A Board hearing was scheduled for the Veteran in November 2015 and notice was sent to him at his address of record. The Veteran failed to report for his scheduled hearing, and in January 2018, the Board sent a letter to the Veteran inquiring if he still desired a hearing. Thereafter, in August 2018, the Veteran withdrew his request for a hearing. As such, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704. New evidence was associated with the claims file after the August 2020 Supplemental Statement of the Case that was not considered by the agency of original jurisdiction (AOJ). After certification to the Board, the RO continued to develop several other claims and obtained updated VA treatment records, which shows continued treatment for the neuropathy. This evidence is relevant since it pertains to the issue on appeal; but as this appeal is being remanded, there is no prejudice to the Veteran in the Board proceeding, as the AOJ can consider the evidence when readjudicating the claims. Here, an August 2018 Board decision denied reopening the claims for service connection for a right wrist and hand condition and for the bilateral hip condition; the claim for a groin condition was denied; and the claims for service connection for peripheral neuropathy of the bilateral upper and bilateral lower extremities were remanded for further development. However, the Board finds that the May 2020 VA opinion did not comply with the Board’s instructions as the examiner did not consider all pertinent evidence of record, as directed, and is not responsive to the Board’s remand instructions. Specifically, the examiner did not consider evidence that was clearly listed in the directives – including the evidence from service that showed neuropathy symptoms associated with the back and knee injury – but rather provided a conclusory opinion that the Veteran’s neuropathy was hereditary so was not due to service, without discussing this evidence; nor was there an adequate analysis discussing, if the conditions are hereditary, whether the conditions were aggravated by the service-connected back and knee conditions. In addition, a July 2020 VA examination of the bilateral upper and bilateral lower extremities was conducted, which was several months after the May 2020 opinion; the examination report is impactful as to the nexus opinion, as the May 2020 examiner specifically stated that “there is no complete neurologic evaluation in the recent records to substantiate progression of the neuropathy. In the absence of current EMG evidence or neurologic exam findings, it is less likely than not that the Veteran has objective aggravation of the hereditary polyneuropathy, due to any cause.” While the May 2020 examiner noted that there had been no progression of the condition as part of the rationale, the July 2020 examination report indicated that there is a progression and that the conditions had worsened. The matters are REMANDED for the following action: Request an addendum opinion from the May 2020 examiner. The examiner must note review of the complete claims file, including this remand. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner must opine as to the following, with full supporting rationales: a.) whether the Veteran’s peripheral neuropathy of both bilateral upper and bilateral lower extremities is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease? b.) whether the Veteran’s peripheral neuropathy of both bilateral upper and bilateral lower extremities was at least as likely as not (50 percent or greater probability) caused by either his service-connected low back or right knee conditions? c.) whether the Veteran’s peripheral neuropathy of both bilateral upper and bilateral lower extremities was at least as likely as not (50 percent or greater probability) aggravated beyond their natural progression by either his service-connected low back or right knee conditions? The examiner should consider the following: • December 1991 report of tingling and numbness in the Veteran’s legs after falling from a truck; • December 1991 report of radiculitis in both legs, followed by January 1992 report of no radicular symptoms; • September 1992 EMG report noting “mild motor root limitation L5”; • August 2003 medical records showed complaints of hand pain/discomfort numbness and foot and leg numbness and paresthesia; • May 2004 private records showed complaints of foot numbness, leg paresthesia, bilat weakness; • August 2004 diagnosis of bilateral carpal tunnel; • May 2006 Nerve conduction studies; • June 2008 private medical record noted neuropathic pain of numbness and shooting pain with an assessment of neuropathy; • June 2008 medical note that he had a 4-year history of leg paresthesias. Has foot numbness with leg paresthesias and bilateral weakness. • February 2009 brain MRI and March 2009 thoracic spine MRI; • June 2009 testing - Evidence of sensory motor polyneuropathy and that it “may well be from glucose intolerance”; • March 2011 VA examination report and opinion, including negative straight leg test; • May 2011 nerve conduction, H wave, and EMG studies by a private orthopedic clinic, including opinion that the Veteran’s peripheral polyneuropathy of the feet is likely hereditary; • Ongoing VA medical records noting he also has diabetic neuropathy; • The July 2020 VA examination results, particularly that the examiner noted the condition had progressed/worsened. Rationale must be provided for opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.