Citation Nr: 21006892 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 12-25 388 DATE: February 5, 2021 REMANDED Entitlement to service connection for peripheral neuropathy of the upper and lower extremities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1968 to December 1969, to include service in the Republic of Vietnam for which he was awarded the Combat Infantryman Badge (CIB). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2015, the Veteran testified before the undersigned. In January 2016, July 2017, and July 2020, the Board remanded these matters for further development. As recounted in every previous remand, the Veteran asserts that his neurological disorder resulting in numbness and tingling in his bilateral upper and lower extremities, to include peripheral neuropathy, had their onset during his active duty service, to include as due to his conceded exposure to herbicide agents. See December 1991, June 2010 Veteran lay statements. The Veteran has reported that symptoms of numbness and tingling began in the 1970s and continued to the present, worsening to the point that he sought medical care in the early 1980s at the Montgomery VA medical center, and continued seeking treatment at Lake City VA treatment clinic in the 1990s. See May 2016 VA examination report; January, February, May 1990 VA treatment records. In this regard, the July 2020 Board remand instructed the RO to obtain Montgomery VA treatment records from the 1980s to the present. The Board notes that these records have not been developed at any time during the pendency of the appeal. Additionally, the Veteran has been reporting treatment at Montgomery VA medical center was relevant to his peripheral neuropathy claim since he filed his original claim for peripheral neuropathy. See December 1991 Veteran lay statement. While the Veteran supplied partial records from 1990 to the VA with his claim, the Board notes that development for Montgomery VA medical center records was still pending in February 1992 and that these records were not considered in the initial denial of service connection in May 1994. See February 1992 VA Form 10-7131. Accordingly, the RO has failed to substantially comply with the Board’s July 2020 order and remand is once more necessary to complete development for the Montgomery VA medical treatment records from the 1980s to the present. Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded these matters for review by a neurologist in January 2016 and July 2017 and the initial opinion was received in April 2020. In July 2020, the Board noted the April 2020 examiner only found the Veteran’s exposure to herbicide agents was “possible,” rendering the opinion inadequate as the Veteran is presumed to be have been exposed to herbicide agents as a matter of law and for the purposes of any VA action is considered to be fact unless sufficiently repudiated. 38 C.F.R. § 3.307. Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009) (medical opinion is speculative when it uses equivocal language such as could or might, without any other rationale or supporting data). Accordingly, the Board remanded these matters in July 2020 for an addendum opinion to address whether herbicide agents, among other theories of entitlement, were the proximate cause of the Veteran’s current bilateral upper and lower extremity neurological disorders. In the July 2020 remand, the Board reviewed the Veteran’s lay statements of record. Notably, the Veteran reported in September 1991 that he first experienced symptoms of numbness in his hands and feet in the 1970s that progressed slowly over time eventually requiring medical attention in the late 1980s and early 1990s. See September 1991 VA Form 21-4138, December 1991 Veteran lay statement. Similarly, the Veteran testified in November 2015 that he was experiencing numbness and tingling that began shortly after his discharge from active duty. See November 2015 Board Hearing Transcript at 12. The Veteran has also made other statements regarding the onset of his neurological symptoms. In January 1990 the Veteran reported to a Montgomery VA treatment provider that he had numbness in his hands and feet. In May 1990, he was advised to stop drinking alcohol and caffeine when he complained to a VA doctor that he was experiencing numbness in his fingers. In July 1991, a Montgomery VA medical provider ordered an MRI in connection with the Veteran’s complaints of foot numbness. In June 1991, the Veteran reported to a Lake City VA medical treatment provider that the numbness in his extremities had been worsening over the last five years and essential tremors were noted in the fine motor movements of his fingers. The Veteran specifically denied the overconsumption of alcohol during that visit. In July 1991, the Veteran reported to a Lake City VA medical treatment provider that his neurological symptoms began 6 or 7 years prior. The Court of Appeals for Veterans Claims (Court) has recently held if a VA examiner explains whether the claimant’s lay assertions are generally consistent or inconsistent with medical knowledge, the Board can weigh that when addressing credibility. See Miller v Wilkie, 32 Vet. App. 249, 259-60 (2020). Due to the multiple and largely consistent lay statements made over the course of many years, the Board asked the VA examiner to consider these statements as true and opine as to whether they were medically consistent with the onset of the Veteran’s currently diagnosed neurological disorders so that the credibility of these statements could be properly weighed. In the resultant October 2020 addendum opinion, the VA examiner simply stated that “this would be a legal decision” and did not address the Veteran’s lay statements any further. Accordingly, the April 2020 examiner’s opinion is inadequate in this regard. See Miller, supra.; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). Additionally, the Board notes the examiner, in addressing whether the Veteran’s current neurological disorders were due to his presumed exposure to herbicide agents, concluded that his current pattern of symptoms are inconsistent with toxic exposure but then also appears to state that they are due to toxic exposure in the form of ethyl alcohol. While this may be true, the Board cannot rely on a conclusory opinion unsupported by a rationale delineating these two seemingly conflicting opinions. See Nieves, supra. For these reasons, an additional addendum opinion must be obtained on remand. All outstanding records, to include Montgomery VAMC from 1980s to the present, must also be obtained. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, including but not limited to those from Montgomery VA Medical Center from 1980 to the present. 2. With any necessary assistance from the Veteran, obtain any relevant outstanding private treatment records. 3. Then obtain an addendum opinion from an examiner other than the April 2020 contract VA examiner, to determine the nature and etiology of the Veteran’s bilateral upper and lower extremity neurological disorders, to include peripheral neuropathy. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner should accept as fact that the Veteran was exposed to herbicide agents during his combat service in the Republic of Vietnam. Following a review of the claims file, the examiner should opine: (a.) whether it is at least as likely as not (50 percent or greater probability) that any diagnosed neurological disability had its onset in or is otherwise related to his active duty service, to include as the result of his conceded exposure to herbicide agents in Vietnam, his diagnosed malarial infection and any treatment required for malaria (to include Dapsone), or any blood disorder noted during active duty service. 1. In addressing this question please discuss: a. the Veteran’s statement that he was directly sprayed with herbicide agents by a C-130 and subsequently consumed untreated water from ponds and streams in these areas; b. the Veteran’s report that the numbness and tingling in his bilateral upper and lower extremities began during his active duty service and slowly progressed over time. The examiner must assume items (i) and (ii) above are true, even despite the absence of “objective documentation.” Please state whether a nexus between the Veteran’s bilateral upper and lower extremity peripheral neuropathies and service, to include as due to conceded herbicide agent exposure, is medically consistent with the symptomatology reported by the Veteran in items(i) and(ii) above. (b.) whether it is at least as likely as not (50 percent or greater probability) that the diagnosed vitamin B12 neurological lesions or neuropathies had their onset during active duty service. In addressing this question please discuss: 1. the Veteran’s in-service skin disorders, stomach cramps, diarrhea, weakness, malaise, nausea, recurrent and spontaneous gingival bleeding, his stomach pains occurring anytime he ate for weeks on end, and the documented high platelet count; 2. the Veteran’s 1971 hospitalization for gastritis; and 3. the Veteran’s October 1981 herbicide questionnaire noting endocrine, nutritional, or metabolic diseases. If unable to provide a requested medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.