Citation Nr: 21014154 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-51 292 DATE: March 11, 2021 REMANDED Entitlement to service connection for right lower extremity peripheral neuropathy, to include as secondary to service-connected disabilities and herbicide agent exposure. REASONS FOR REMAND The Veteran served on active duty from July 1962 to June 1977, to include service in the Republic of Vietnam. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In April 2019, the Board remanded the claims for further development, to include obtaining VA medical opinions addressing the etiology of the Veteran’s bilateral peripheral neuropathy of the lower extremities. In May 2020 and again in July 2020, the Board remanded the claims to ensure compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). In September 2020, the RO granted service connection for neuropathy of the left lower extremity as secondary to the service-connected residual of a fractured left femur. See Rating Decision dated September 11, 2020. The RO’s grant of service connection for neuropathy of the left lower extremity is considered a full grant of the benefits on appeal for that claim. As such, this issue is no longer before the Board for appellate consideration. A.B. v. Brown, 6 Vet. App. 35 (1993). The Board notes that on September 23, 2020, the Veteran submitted a statement indicating he had no other evidence to submit and to return the case to the Board for further appellate consideration. Then, the Veteran submitted an Appeals Satisfaction Notice on September 25, 2020 withdrawing all remaining issues that had been remanded. However, in February 2021, the Veteran’s representative submitted an appeal brief in support of the claim for service connection for right lower extremity peripheral neuropathy. The Board construes such action as intent to not withdraw and to continue the Veteran’s appeal. Discussion Although the Board regrets the additional delay, remand is again necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38C.F.R. § 3.159(c) (2020). Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As previously determined by the Board, the November 2019, January 2020, and June 2020 VA medical opinions that were intended to address the etiology of the Veteran’s bilateral lower extremity neuropathy are inadequate. Pursuant to the Board’s July 2020 Remand, a VA medical opinion was obtained. See VA medical opinion dated August 15, 2020. The August 2020 VA examiner determined that “the Veteran’s medical records do not support that any currently diagnosed condition(s) related to [his] claimed bilateral lower extremity peripheral neuropathy is at least as likely as not (50 percent or greater probability) incurred in or caused by the herbicide agent exposure during service.” This opinion, while unclear, appears to address one or more disorders other than the Veteran’s bilateral lower extremity peripheral neuropathy and lists in bullet point fashion references to medical records with no rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). Furthermore, the examiner referenced but failed to indicate whether the Veteran’s lay statements of an onset of tingling in both feet during service in the 1970s were considered in reaching her opinion. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (examiner failed to adequately consider the lay statements of record regarding the onset and continuity of the Veteran’s symptoms). Notably, regarding secondary service connection due to residuals of the left femur and humerus fractures, the examiner addressed causation, but not aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that a medical opinion that focuses solely on direct causation is insufficient to address the question of aggravation under § 3.310(b).). The Board notes that considerable copying and pasting of verbiage from the Veteran’s medical records as substantiation for the opinion without any meaningful discussion thereof further diminishes the opinion’s probative worth. Therefore, regarding the etiology of the Veteran’s right lower extremity peripheral neuropathy, the August 2020 medical opinion is inadequate. Accordingly, remand is necessary to obtain an adequate opinion addressing the etiology of the Veteran’s right lower extremity peripheral neuropathy. See Barr, supra; Stegall, supra. The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, obtain an addendum opinion from the same VA examiner who authored the August 2020 opinion as to the etiology of the Veteran’s right lower extremity peripheral neuropathy. If the same examiner is unavailable, request an addendum opinion from a VA examiner who is a physician (M.D.) who specializes in neurology. *The need for another examination is left to the discretion of the medical professional offering the opinions. Should an examination be necessary, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail, and correlated to a specific diagnosis. The claims file, and a copy of this Remand, must be made available to the examiner, who will acknowledge receipt and review of these materials. *The examiner’s REVIEW of the body of this Remand is recommended to assist in avoiding errors that have rendered the previous VA opinions inadequate. Although a thorough review of the claims file is imperative, attention is called to the following evidence, which the examiner should discuss and weigh in his/her opinion: *A December 2013 “Agent Orange” examination report reflecting the Veteran’s chief complaint of discomfort in both feet, specifically paresthesia and numbness in both feet for ten to fifteen years, which he discounted because of his hip pain. *A July 2014 statement in which the Veteran indicated that he began feeling tingling in both feet in 1971 and continued to feel as if he was wearing socks at all times. *A March 2015 notice of disagreement in which the Veteran stated that he began noticing tingling in both feet in the early 1980s. *December 2017 correspondence in which the Veteran reiterated his contentions and added that in 1980, he had already been placed on the Agent Orange Register. *March 2019 hearing transcript indicating that during service in 1970 he started noticing numbness in both feet, and by 1980 his feet “just weren’t right,” and he began using shoe inserts. The Board’s reference to this evidence should not be construed as a determination of its credibility. See Smith v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 739 (April 27, 2020). THEN, the examiner is asked to respond to the following: (a) Provide an opinion as to whether the diagnosed right lower extremity peripheral neuropathy is at least as likely as not directly related to herbicide agent exposure during service. In rendering this opinion, the examiner shall (i) discuss and weigh the Veteran’s lay contentions; AND (ii) identify and discuss the nature of any medical literature considered in reaching the opinion. (b) Provide an opinion as to whether the Veteran experienced chronic symptoms of peripheral neuropathy in service and/or continuing symptoms since service separation. **In rendering this opinion, the examiner shall (i) discuss and weigh the Veteran’s lay contentions; AND (ii) identify and discuss the nature of any medical literature considered in reaching the opinion. (c) Provide an opinion as to whether the diagnosed right lower extremity peripheral neuropathy was at least as likely as not caused or aggravated by the service-connected residuals of left femur and humerus fracture. *Note: Aggravation under 38C.F.R. §§3.310(b) does not require that there be “permanent worsening” of the nonservice connected disability. Additionally, the requested medical opinion must address but causation AND aggravation under 38 C.F.R. § 3.310(b). See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). **In rendering the requested opinions, the examiner shall identify and discuss the nature of any medical literature considered in reaching the opinions. Note: The term “medical literature” should be construed to mean peer-reviewed medical articles published by medical journals, medical colleges, and/or public and private health institutes. A complete rationale should be provided for all opinions. 3. Thereafter, closely compare the opinions obtained pursuant to this remand to ensure that each one complies with the remand directives herein and are otherwise adequate for adjudication purposes. Any deficiencies should be promptly addressed by the examiner who authored the opinions. Then, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell 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.