Citation Nr: 21020880 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-55 564 DATE: April 8, 2021 REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity (LLE), claimed as due to herbicide agent exposure, is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity (RLE), claimed as due to Agent Orange exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1970 to June 1972. The Veteran served at the Udorn Royal Thai Air Force Base as a security policeman. VA has conceded the Veteran’s exposure to herbicide agents. See SOC (September 2017). These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified before the undersigned Veterans Law Judge. A hearing transcript is associated with the claims file. 1. Entitlement to service connection for a low back disorder is remanded. 2. Entitlement to service connection for LLE peripheral neuropathy is remanded. 3. Entitlement to service connection for RLE peripheral neuropathy is remanded. The Veteran contends that he injured his back in service when he stepped out of back of truck missing a stirrup and falling with full gear; and that back symptoms gradually became apparent over the years. He contends that his peripheral neuropathy of the lower extremities is due to his herbicide agent exposure in service. VA has conceded herbicide agent exposure. To ensure that VA has met its duty to assist, remand is necessary to obtain outstanding treatment records and an adequate medical opinion in these matters as explained more fully below. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). First, at his February 2021 Board hearing, the Veteran identified relevant outstanding private treatment records. Specifically, the Veteran reported he has been treated for 30 years by Dr. H.E. Except for records from 2017 indicating treatment for the low back and for peripheral neuropathy of the lower extremities, those records are not associated with the claims file. See 38 U.S.C. § 5103A (b), (c); 38 C.F.R. § 3.159 (b), (c)(1). A remand is required to afford the Veteran an opportunity to authorize release of those records to VA. Second, an October 2016 VA medical opinoin addressing the Veterran’s back disorder is inadquate for adjudicative purposes. It reflects that the Veteran’s back disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that: Record dated 8/26/70 indicates that claimant complained of back pains during military service, However, it is less likely than not that current low back conditionis service related. The rationale is that there are no records provided that indicate any history of trauma to back as reported by claimant. Also, there is no longitudinal pattern of recurrent back pain that would be consistent with a lumbar radiculopathy The opinion does not reflect any meaningful consideration of the Veteran’s history, to include this medical history provided on examinaton that symptoms began in service and worsened over the course of years. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate.”). Third, an April 2017 letter from a private physician, Dr. H.E., reflects that the Veteran’s back pain was from an in-service incident, which was the only known injury to the back. In an April 2018 letter, Dr. H.E. stated that the Veteran had had back pain “over the years.” The opinion linking the Veteran’s current conditon to service lacks a complete rationale. Hence, it is inadequate for adjudicative purposes. A “medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22Vet. App.295, 301 (2008). Fourth, because there is conficting or incongruent medical evidence regarding the Veteran’s lower exrtremity nerve disroder, remand is necessary for clarification and a new medical opion. In this regard, the Board observes that an October 2016 VA examination diagnosed lower extremity radiculopathy, but not peripheral neuropathy. The examiner provided a negative nexus opinion regarding the radiculopathy. However, an April 2018 letter from Dr. H.E. indicated that Veteran had peripheral neuropathy, related to Agent Orange exposure. Although the Veteran provided August 2018 Disability Benefits Questionnaire from Dr. H.E., this reflects normal lower extremity nerves, and that EMG or other diagnostic testing was not conducted; and that peripheral neuropathy was diagnosed. Given the above, remand is necessary. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms involving his back and lower extremities, to include Dr. Howard Ellison. Make two requests for the authorized records from all identified sources unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from September 2016 to the present. 3. Schedule the Veteran for a VA examination for bilateral lower extremity peripheral neuropathy. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed. The medical opinions should, at a minimum, reflect consideration of (i) the documented history; (ii) the lay contentions; and (iii) medical evidence of record. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). (a.) Detail the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. (b.) Clarify whether the Veteran has peripheral neuropathy and/or radiculopathy of either lower extremity. Conduct any testing to confirm such a diagnosis. (c.) Then, opine as to whether it is at least as likely as not that any lower extremity nerve disorder (e.g. peripheral neuropathy or radiculopathy) (1) began in service; (2) manifested within one year after the Veteran’s service discharge, or (3) is etiologically related to in-service injury or disease, to include conceded herbicide agent exposure. NOTE (1): A negative opinion may not be based solely on the absence of documented complaints, treatment, or findings in service. NOTE (2): A negative medical opinion may not be based solely on the fact that the peripheral neuropathy, if not of early-onset, is not included on the list of diseases enumerated as presumptively associated herbicide agent exposure. NOTE (3): The clinician is not required to accept history as provided by the Veteran as to symptoms, onset, and progression; however, a complete explanation is required for any medical history rejected. NOTE (4): If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 4. Obtain an addendum opinion from an appropriate clinician to address the etiology of the Veteran’s low back disorder. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed. The medical opinions should, at a minimum, reflect consideration of (i) the documented history; (ii) the lay contentions; and (iii) medical evidence of record to include that favorable and unfavorable. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). (a.) Based on review of lay statements and medical records, detail the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. (b.) Then, opine as to whether it is at least as likely as not that any low back disorder (e.g. degenerative arthritis of the spine)) (1) began in service; (2) manifested within one year after the Veteran’s service discharge, or (3) is etiologically related to in-service injury or disease, to his history of a fall off a truck in full gear in service. NOTE (1): A negative opinion may not be based solely on the absence of documented complaints, treatment, or findings in service. NOTE (2): The clinician is not required to accept history as provided by the Veteran as to symptoms, onset, and progression; however, a complete explanation is required for any medical history rejected. NOTE (3): If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 5. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.M., 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.