Citation Nr: 21007381 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-28 157 DATE: February 9, 2021 REMANDED Entitlement to service connection for peripheral neuropathy of the upper right extremity is remanded. Entitlement to service connection for peripheral neuropathy of the upper left extremity is remanded. Entitlement to service connection for peripheral neuropathy of the lower right extremity is remanded. Entitlement to service connection for peripheral neuropathy of the lower left extremity is remanded. Entitlement to special monthly compensation (SMC) for aid and attendance is remanded. Entitlement to an initial evaluation in excess of 20 from March 21, 2017, and in excess of 30 percent from October 12, 2019, for radiculopathy of the right, lower extremity is remanded. Entitlement to an initial evaluation in excess of 10 percent for degenerative arthritis of the lumbar spine is remanded. Entitlement to an effective date earlier than January 19, 2016, for the grant of service connection for degenerative arthritis of the lumbar spine is remanded. REASONS FOR REMAND The Veteran had active duty service from April 1969 to May 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2016. A transcript of that hearing has been associated with the claims file. The Board remanded the claim for further development in February 2017, March 2018, and September 2019. That development has been completed, and the case has since been returned to the Board for appellate review. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. The Veteran was afforded VA examinations for his peripheral neuropathy claims in November 2020, in which the VA examiner diagnosed myotonic muscular dystrophy and opined that the Veteran’s chronic neuropathy and extremity weakness was associated with the myotonic muscular dystrophy. The Veteran was also afforded a VA peripheral nerve disorder examination in December 2020 wherein the examiner opined that there was no peripheral nerve condition and instead found that the Veteran’s muscle weakness and functional limitations were secondary to his progressive myotonic muscular dystrophy. Unfortunately, the November 2020 and the December 2020 VA examiners did not provide an opinion as to whether the Veteran’s myotonic muscular dystrophy was related to in-service herbicide exposure. The Board notes that such an opinion is required in order to address the Veteran’s contentions during his appeal. In that regard, the Board notes that the Veteran’s VA medical records also indicate that the Veteran is “…convinced that his muscular dystrophy is from [Agent Orange] …” See VA medical records dated February 2019. Although myotonic muscular dystrophy is not on the list of diseases that VA has associated with Agent Orange exposure, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303(d), 3.309(e); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Therefore, the Board finds that an additional VA medical opinion is necessary to determine whether the Veteran’s myotonic muscular dystrophy is caused by herbicide exposure while in service. Additionally, the Board notes that the AOJ issued a Supplemental Statement of the Case (SSOC) in December 2020 following the November 2019 VA examinations. The Veteran was subsequently afforded another VA peripheral nerves examination later in December 2020. The AOJ did not issue another SSOC following the December 2020 VA examinations and there is no automatic waiver for evidence obtained by VA. This examination was before return of the appeal to the Board. Therefore, the claim must be remanded to the AOJ for the issuance of an SSOC that considers this additional evidence. See 38 C.F.R. § 19.31 (b)(3). Additionally, as the Veteran’s SMC claim is inextricably intertwined with his service connection claims for peripheral neuropathy, the adjudication of the SMC must be deferred pending the proposed development. Finally, the Board notes that following its March 2018 decision, which granted service connection for the Veteran’s back disorder, the Veteran submitted a September 2018 notice of disagreement, following the AOJ’s July 2018 rating decision, which effectuated the Board’s grant of service connection for the Veteran’s degenerative arthritis of the lumbar spine and granted service connection for radiculopathy of the right, lower extremity. The September 2018 notice of disagreement included appeals for entitlement to an initial increased evaluation for radiculopathy of the right, lower extremity and degenerative arthritis of the lumbar spine, as well as entitlement to an earlier effective date for the grant of service connection for degenerative arthritis of the lumbar spine. However, it does not appear that the AOJ has started to process that appeal. Thus, a remand is required for the AOJ to issue a statement of the case (SOC). See 38 C.F.R. § 19.9 (c); Manlincon v. West, 12 Vet. App. 238 (1999) (finding that if an NOD remains unprocessed, a remand is required for issuance of an SOC). Accordingly, the case is REMANDED for the following action: 1. The AOJ should issue a statement of the case addressing the issues of entitlement to an initial increased evaluation for radiculopathy of the right, lower extremity, entitlement to an initial increased evaluation for degenerative arthritis of the lumbar spine, and entitlement to an earlier effective date for the grant of service connection for degenerative arthritis of the lumbar spine. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The AOJ should advise the Veteran that the claims file will not be returned to the Board for appellate consideration for these issues unless he perfects an appeal. 2. The Veteran should be afforded a VA medical opinion from a qualified medical professional (different than the examiner that provided the October 2019 and February 2020 opinions) to determine the nature and etiology of any myotonic muscular dystrophy that may be present. Only if deemed necessary by the VA examiner is an physical examination necessary. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is presumed to have been exposed to certain herbicide agents, including Agent Orange, during his military service. The examiner should opine as to whether it is at least as likely as not that the Veteran has myotonic muscular dystrophy that is causally or etiologically related to his military service, to include any herbicide exposure therein (regardless of the fact that myotonic muscular dystrophy is not presumed to be associated with herbicide exposure). (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.)   A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Rideout-Davidson, 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.