Citation Nr: 21013746 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 11-01 218 DATE: March 10, 2021 REMANDED Entitlement to service connection for a bilateral upper extremity disability, to include bilateral peripheral neuropathy is remanded. Entitlement to service connection for a bilateral lower extremity disability, to include bilateral peripheral neuropathy, is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to December19, 2012 is remanded. REASONS FOR REMAND The Veteran served honorably in the U.S. Marine Corps from September 1967 to September 1971, including service in Vietnam, and from September 1973 to September 1975. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2010 and a June 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. The Board last considered this appeal in February 2020, when remanded the Veteran’s claims for further development, including to obtain an independent medical opinion. However, for the reasons set forth below, the Board has determined that substantial compliance with its February 2020, and previous May 2018, Remand directives has not yet occurred; thus, unfortunately, the Veteran’s claim must again be remanded for further development. See Stegall v. West, 11Vet. App.268, 271 (1998). Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 1. Entitlement to service connection for a bilateral upper extremity disability, to include bilateral peripheral neuropathy. 2. Entitlement to service connection for a bilateral lower extremity disability, to include bilateral peripheral neuropathy. The Veteran contends that his disabilities of the bilateral upper and lower extremities are causally related to his active military service, including his exposure to herbicide agents in Vietnam. The Veteran was afforded a VA examination in September 2019. The examiner opined that the Veteran’s current disabilities of the bilateral upper and lower extremities are less likely than not related to his active military service, including his exposure to herbicide agents in Vietnam. The VA examiner provided the following rationale: (1) the Veteran’s disabilities of the bilateral upper and lower extremities did not onset until decades after his separation from service and bilateral upper extremities is “an entrapment syndrome, not a diffuse metabolic neuropathy as would be found in a condition caused by an exposure”; (2) despite the clinical diagnosis of peripheral neuropathy of the feet made by the Veteran’s VA podiatrist, no EMG evidence of any nerve dysfunction in the lower extremities was ever demonstrated. In a February 2020 remand, the Board found that the rationale provided by the September 2019 VA examiner did not adequately address why the diagnosed conditions are not otherwise related to service and directed the AOJ to obtain an advisory medical opinion rendered by an independent medical expert due to the heightened level of medical complexity and controversy involved in the Veteran’s claim. See 38 U.S.C. §5109. In March 2020 an independent medical report was associated with the Veteran’s file. The March 2020 medical report acknowledge that the Veteran had significant exposure Agent Orange while in Vietnam and started experiencing peripheral neuropathy of upper and lower extremities in the last 10-12 years. The independent examiner concluded that the Veteran's current disabilities of the bilateral upper and lower extremities are less likely than not related to his active military service, including his exposure to herbicide agents in Vietnam. The rationale provided is that the Veteran “is not a diabetic and has non diabetic diffuse peripheral neuropathy which developed many years after active service duty and agent orange exposure. No STRs noted in the medical file of peripheral neuropathy during active duty either." Here, the independent medical report did not address the February 2020 Board directives to “specifically discuss the lay statements as to the onset of symptoms, the April 2016 VA treatment records, and the May 2017 VA podiatry note reflecting a diagnosis of neuropathy, with a suspected cause of herbicide agent exposure; instead, the medical report repeated the previous opinion Ad Verbatim and added that “no evidence of any nerve dysfunction in the lower extremities was ever demonstrated on EMG/NCV.” The Board finds these opinions are inadequate, however, because they failed to address the Board’s remand directives. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As the March 2020 medical report did not respond to the Board's February 2020 directives, the Board finds the March 2020 medical opinions inadequate regarding the issues of service connection for the bilateral upper and lower extremity disabilities, to include bilateral peripheral neuropathy. Once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21Vet. App.303, 312 (2007). Without further clarification, the Board is without medical expertise to determine the nature and etiology of the claimed disabilities. Colvin v. Derwinski, 1 Vet. App. at 171 (1991). In light of the above, the Veteran’s claim must again be remanded for further development. See Stegall v. West, 11Vet. App.268, 271 (1998). 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to December19, 2012. The Board recognizes that any decision regarding the Veteran’s service connection claims being remanded herein may impact the Veteran’s claim for entitlement to a TDIU; therefore, consideration of entitlement to a TDIU must be deferred until the intertwined issues are resolved or prepared for appellate consideration. See Harris v. Derwinski, 1Vet. App.180, 183 (1991). The matters are REMANDED for the following action: 1. Arrange to obtain an addendum medical opinion by the VA examiner who provided the independent medical opinion in March 2020 as to the etiology of the Veteran’s current disabilities of the bilateral upper and lower extremities. 2. If that individual is not available, document that fact in the record, and arrange to obtain an addendum opinion from an appropriate physician. Due to the complexity and controversy of this claim, this opinion must be obtained by an appropriate specialist pursuant to 38 U.S.C. §5109. An examination of the Veteran, to include EMG testing, is only necessary if deemed so by the examiner. The examiner selected must have the appropriate expertise and be provided access to the electronic claims file. The resulting medical report should specifically state that a review of the record was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The Veteran is presumed to have been exposed to herbicide agents, such as Agent Orange, during his military service in Vietnam. The examiner should address the following: (a.) Whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s current disability of the right upper extremity is due to or otherwise causally or etiologically related to his military service, to include his exposure to herbicide agents; (b.) Whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s current disability of the left upper extremity is due to or otherwise causally or etiologically related to his military service, to include his exposure to herbicide agents; (c.) Whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s current disability of the right lower extremity is due to or otherwise causally or etiologically related to his military service, to include his exposure to herbicide agents; and d)Whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s current disability of the left lower extremity is due to or otherwise causally or etiologically related to his military service, to include his exposure to herbicide agents. The examiner must discuss the lay statements as to the onset of symptoms, the April 2016 VA treatment record and the May 2017 VA podiatry note reflecting a diagnosis of neuropathy, with a “suspected cause” of herbicide agent exposure. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.