Citation Nr: 21013119 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 13-14 284 DATE: March 8, 2021 REMANDED Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities (BLEs) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1967 to August 1969. In October 2017, the Veteran provided sworn testimony at a video conference hearing before the undersigned. A transcript of that hearing has been associated with the claims file. In July 2019, the Board denied the Veteran’s claim for service connection for peripheral neuropathy of BLEs. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court issued an order granting an April 2010 Joint Motion for Partial Remand (JMPR). The JMPR outlined that the Board erred when it failed to satisfy its duty to assist by relying upon a January 2019 VA medical opinion that was inadequate. The Board subsequently remanded this claim in November 2020. 1. Entitlement to service connection for peripheral neuropathy of the BLEs is remanded. As noted above, the Board remanded the peripheral neuropathy claim for a new VA opinion in compliance with the April 2020 JMPR. Specifically, the examiner was directed not to rely solely on a lack of medical literature to support her opinion and to use the “incremental increase” standard in providing her opinion on aggravation. The examiner failed to follow either of these directives, providing an opinion that was nearly identical to the January 2019 opinion deemed inadequate in the JMPR. The Board finds that this issue poses a medical problem of such obscurity or complexity that an advisory opinion from an independent medical expert (IME) is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Specifically, multiple VA opinions have been unable to address the concerns highlighted by the JMPR or the complexities of the Veteran’s multiple diagnoses. The AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. The matters are REMANDED for the following actions: 1. Obtain an advisory medical opinion from an independent medical expert pursuant to 38 U.S.C. § 5109; 38 C.F.R. § 3.328. The AOJ must follow its established procedures for requesting such an advisory opinion. The entire claims file should be provided to the physician. The following should be addressed: (a) Whether the Veteran’s peripheral neuropathy of the BLEs is related to service (direct service connection) or caused or aggravated by his service-connected pes planus (secondary service connection). The independent medical expert should specifically address the following questions: (a) Is it at least as likely as not that the Veteran’s peripheral neuropathy of the BLEs is: i. proximately due to his service? ii. proximately due to his service-connected bilateral pes planus? iii. underwent an incremental increase (was aggravated), regardless of permanence, beyond its natural progression by his service-connected bilateral pes planus? The examiner must comment and address the following: (a) The known risk factors for peripheral neuropathy of the BLEs AND whether the Veteran has any of these risk factors. (b) The Veteran’s service treatment records containing complaints of cramping in legs, including the July 1969 report of medical board. (c) The Veteran’s VA treatment records containing complaints of cramping in legs, including the April 2012 VA examination report. (d) The March 1970 VA examination report with reports of radiating pain through his legs. (e) The December 2017 private treatment record. Be advised that an absence of medical literature is not a sufficient rationale for a negative opinion. The particular circumstances of the Veteran’s case must be discussed in detail. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moore, 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.