Citation Nr: 21016173 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 09-32 410A DATE: March 22, 2021 REMANDED Entitlement to service connection for peripheral neuropathy of the right foot, to include as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1965 to March 1968. He died in February 2014. The appellant is his surviving spouse and has been accepted as a substitute claimant for the purpose of processing this appeal to its completion. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2013, the Veteran and the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In March 2013, April 2017, and January 2020, the case was remanded for additional development and it now returns to the Board for further appellate review. The Board notes that, in September 2020, the appellant was sent a letter indicating that she had elected an in-person hearing with a Veterans Law Judge and, in light of COVID 19, was encouraged to opt into a virtual hearing; however, such letter was sent in error as the Veteran’s Board hearing was previously held in March 2013 and she has not subsequently requested an additional hearing. Quinn v. Wilkie, 31 Vet. App. 284 (2019). Entitlement to service connection for peripheral neuropathy of the right foot, to include as due to exposure to herbicide agents. In the January 2020 remand, the Board found that a September 2019 opinion addressing the etiology of the Veteran’s peripheral neuropathy of the right foot was inadequate to decide the claim as it was based on an inaccurate factual premise and did not consider all theories of entitlement raised by the record. Consequently, the Board remanded the claim in order to obtain an addendum opinion addressing whether his peripheral neuropathy of the right foot had its onset in, or is otherwise related to, his military service, to include his acknowledged in-service exposure to herbicide agents; manifested within one year of separation from service; or was caused or aggravated by his alcohol use disorder and, if so, whether such was, in turn, caused or aggravated by his service-connected posttraumatic stress disorder (PTSD). In March 2020, such addendum opinion was obtained; however, such was not supported by an adequate rationale and/or based on an accurate factual premise. In this regard, the VA examiner opined that the Veteran’s peripheral neuropathy of the right foot less likely than not had its onset in, or is otherwise related to his military service or manifested within one year of his separation from service, to include as evidenced by a continuity of symptomatology, to include due to his acknowledged in-service exposure to herbicide agents. In support of such opinion, he cited to a review of the file and the fact that the Veteran’s service treatment records were silent for any complaints or diagnosis of peripheral neuropathy of the right foot. The examiner further stated that only early onset peripheral neuropathy is acknowledged to be presumptively related to exposure to herbicide agents, which must manifested within one year of last exposure, and the record was negative for complaints or a diagnosis of such disorder within one year of military service. However, in the January 2020 remand, the Board advised that an examiner’s unfavorable opinion regarding the relationship between the Veteran’s peripheral neuropathy of the right foot and his acknowledged in-service exposure to the right foot may not be based solely on the fact that the Veteran’s peripheral neuropathy is not included on the list of diseases acknowledged to be presumptively related to exposure to herbicide agents. Thus, as the examiner failed to address whether such disorder is related to such exposure on a non-presumptive basis, a remand is necessary in order to obtain an addendum opinion addressing such matter. The March 2020 VA examiner further opined that the Veteran’s peripheral neuropathy of the right foot is less likely caused by, a result of, or aggravated by his alcohol use disorder. In support of such opinion, he cited to a review of the file and noted that, while the Veteran had a history of alcoholism with hospitalizations in 1977 and 1982, his peripheral neuropathy of the right foot was not diagnosed until 1992. Thus, the examiner found that, as the Veteran’s alcohol abuse had been in remission for at least 10 years at the time of diagnosis, was diagnosed as idiopathic, and presented as unilateral rather than bilateral (as alcohol-related peripheral neuropathy usually presents as bilateral), his alcohol abuse was less likely to be considered as the etiology of his peripheral neuropathy. However, in the January 2020 remand, the Board noted multiple treatment records relating the Veteran’s diagnosis of peripheral neuropathy to his alcohol abuse and the examiner did not reconcile his opinion with such records. Therefore, a remand is necessary in order to obtain an addendum opinion addressing such matter that considers all relevant facts. The matters are REMANDED for the following action: Obtain a medical opinion from an appropriate clinician, other than the March 2020 VA examiner, if possible, regarding the etiology of the Veteran’s peripheral neuropathy of the right foot. After a review of the record, the examiner should address the following: (A) Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s peripheral neuropathy of the right foot had its onset in, or is otherwise related to, his military service, to include his acknowledged exposure to herbicide agents? In this regard, a negative nexus opinion may not be solely on the fact that the Veteran’s peripheral neuropathy is not included on the list of diseases acknowledged to be presumptively related to exposure to herbicide agents. (B) Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s peripheral neuropathy of the right foot is caused or aggravated by an alcohol use disorder? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. When rendering offering such opinions, the clinician is asked to consider the following evidence of record and, if an unfavorable opinion is rendered, he or she should also reconcile such determination with the below noted conflicting evidence: • November 1992 treatment for peripheral neuropathy “chronically secondary to alcohol abuse;” • October 1995 notation of mild right lower extremity weakness; • December 1996 peripheral neuropathy of the toes, with decreased sensation on examination; • August 2002 treatment for alcoholic peripheral neuropathy; • February 2006 treatment for polyneuropathy, with the Veteran requiring a cane for ambulation; • October 2008 VA PTSD examination noting peripheral neuropathy of the right foot, as well as the Veteran’s report of abusing alcohol to treat his PTSD use prior to his PTSD diagnosis and treatment; • March 2009 list of alcoholic peripheral neuropathy among current medical problems; and • December 2010 treatment notations of peripheral neuropathy of unknown etiology, possibly due to Agent Orange exposure, as well as a provisional diagnosis of unspecified idiopathic peripheral neuropathy (notably, the Veteran’s alcohol abuse had been in remission for at least 10 years at this time, thereby making alcohol abuse a more remote medical problem, potentially rendering it less likely to be considered as a peripheral neuropathy etiology). (C) If the above requested medical opinion results in a determination that the Veteran’s right foot peripheral neuropathy is caused or aggravated by his alcohol abuse disorder, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that his alcohol abuse disorder resulted from his attempt to self-medicate his service-connected PTSD symptoms. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.