Citation Nr: 21021038 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 15-31 283 DATE: April 9, 2021 REMANDED Entitlement to service connection for peripheral neuropathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1960 to August 1963. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of November 2014 issued by the Department of Veterans Affairs (VA) Regional Office (RO). Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in May 2015. The RO issued a statement of the case (SOC) in July 2015 and the Veteran’s timely appeal to the Board followed in August 2015. Because the Veteran initially requested a hearing in his appeal, but later withdrew this request, no hearing before the undersigned Veterans Law Judge (VLJ) was conducted. See August 2015 VA Form 9; cf. April 2019 Correspondence; see also April 2019 Appellate Argument at 2. The Board subsequently remanded the Veteran’s case for additional development, including an updated VA examination report. See September 2019 Board Decision at 5-8. The RO issued a supplemental statement of the case (SSOC) in July 2020. After reviewing the evidence of record, the Board finds that an additional remand is necessary to ensure substantial compliance with its September 2019 directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). 1. Entitlement to service connection for peripheral neuropathy. Certain conditions may be service-connected on a presumptive basis where a veteran has been exposed to contaminants in the water supply at United States Marine Corps (USMC) Base Camp Lejeune. 38 C.F.R. § 3.307(a)(7); see also id. at (a)(7)(i)-(iii) (providing qualifying time frame and duration of service). The record reflects that the Veteran served at Camp Lejeune for a qualifying period and is therefore presumed to have been exposed to such contaminants. See June 2014 Military Personnel Records at 17; see also 38 C.F.R. § 3.307(a)(7)(iii). However, peripheral neuropathy is not among the conditions which can be service-connected on the basis of this presumption. See 38 C.F.R. § 3.309(f) (listing eight qualifying conditions). The Board has therefore considered the Veteran’s claim under a theory of direct service connection. Generally, service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As noted above, the Board remanded this case in September 2019 after finding that a November 2014 VA examination report did not provide a specific rationale for its conclusion that the Veteran’s peripheral neuropathy is not due to his exposure to contaminants at Camp Lejeune. See September 2019 Board Decision at 6; see also November 2014 VA Examination Report at 1-2. Accordingly, the Veteran’s claims file was reviewed by a separate VA examiner in July 2020. The July 2020 VA examiner noted that exposure to Camp Lejeune contaminants is a possible etiology of peripheral neuropathy. See July 2020 VA Examination Report at 4 (providing that the examiner “[acknowledges] that TCE and PCE exposure can cause peripheral neuropathy after review of the submitted literature”); see also 38 C.F.R. § 3.307(a)(7)(i) (listing TCE and PCE among relevant contaminants). The July 2020 VA examiner also noted that the Veteran has an alternative, non-service-connected risk factor for developing peripheral neuropathy: the autoimmune disorder known as celiac disease. See July 2020 VA Examination Report at 2; see also id. at 5. This VA examiner therefore opined that: Since [the Veteran] has a history of celiac disease, which can lead to peripheral neuropathy, a causal relationship between [Camp Lejeune contaminants] exposure and peripheral neuropathy cannot be established at this time. Thus, it is less likely than not that peripheral neuropathy is incurred in or caused by CLCW exposure. Id.; see also id. at 4 (restating same); see also id. at 5 (same); see also id. at 6-7 (same). However, while the July 2020 VA examiner reviewed the other medical evidence of record, described the symptoms of peripheral neuropathy and celiac disease, and discussed how TCE and PCE may cause peripheral neuropathy, the VA examiner did not provide any explanation or rationale for why exposure to such contaminants is less likely than not the cause of the Veteran’s condition. See id. at 4-7. In other words, after identifying service-connected contaminants and non-service-connected celiac disease as possible etiologies, the VA examiner did not explain why one is more likely than the other. “[Most] of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight… if it contains only data and conclusions.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the Veteran has also submitted private medical opinions in support of his claim. See February 2014 Correspondence at 1-2 (providing opinion of Dr. R.J.S.); see also April 2019 Medical Treatment Record (providing opinion of Nurse Practitioner M.J.H.). However, neither of these opinions address the Veteran’s celiac disease at all: [The Veteran] has had periodic extensive lab workups that have failed to reveal any cause for his low weight and progressive neuropathy… The peripheral neuropathy, which is manifested as burning, tingling[,] and numbness, was investigated in 12/2012 with lab, MRI of the lumbar spine, and MRI of the brain, as well as Neurology consultation. A cause for the neuropathy was not determined… [The Veteran] sites [sic] reliable documentation of toxic chemicals in the water supply and on site at Camp Lejeune… After 20 years of exclusionary medical workup and documentation of toxic chemical exposure, it is my opinion that there must be a direct connection between [the Veteran’s peripheral neuropathy] and these toxic exposures[.] See February 2014 Correspondence at 1-2. [The Veteran] is currently diagnosed with peripheral neuropathy, which causes him significant pain. In reviewing his history… [he] does not have a history of any other risk factor associated with peripheral neuropathy except for exposure to chemical toxins TCE and PCE during his time in service… his peripheral neuropathy is more likely than not caused by his exposure to toxins in service at Camp Lejeune. See April 2019 Medical Treatment Record. The Board particularly notes that the opinion of Dr. R.J.S. is contradicted by his own treatment notes elsewhere in the record: [The Veteran] [has] celiac [disease] – has managed with diet. Extensive workup for other causes [negative], and since he avoids gluten, celiac workup is borderline. Has [family] [history] of celiac. Celiac has caused [peripheral] neuropathy as well, for which he takes Neurontin. See August 2014 Medical Treatment Records (R.J.S.) at 34 (providing treatment note of July 2007) (emphasis added); see also August 2014 Medical Treatment Records (X.S.H.) at 32 (providing separate treatment note of December 2012 from Dr. X.S.H. expressing no opinion as to etiology but noting that it “would be unusual to have symptoms worsening after the [chemical] exposure was over”). Because neither of the private medical opinions address the Veteran’s celiac disease, they are inadequate to sustain adjudication of the Veteran’s claim. “Without a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing.” Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (emphasis added); see also id. (providing that “[relevant] points that can be discussed in an examination report include, but are not limited to… whether the veteran has other risk factors for developing the claimed condition”) (emphasis added). As discussed above, while the July 2020 VA examination report does note the existence of the Veteran’s celiac disease as a relevant fact, it does not provide any explanation for its conclusion that such a non-service-connected etiology is more likely than not the cause of the Veteran’s peripheral neuropathy. Nieves-Rodriguez, 22 Vet. App. at 304; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (providing that “once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one”). 2. Entitlement to a TDIU. Generally, VA will grant a TDIU when the evidence shows that the Veteran is precluded by reason of his service-connected disabilities from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. However, the record reflects that the Veteran is not service-connected for any disabilities. See November 2014 Rating Codesheet. The Board therefore has no basis on which to assign a schedular TDIU nor to refer this claim for extraschedular consideration. Instead, the Board finds that resolution of this claim is inextricably intertwined with the issue of service connection for peripheral neuropathy and with any disability ratings which may arise from that claim. These matters are therefore REMANDED for the following action: Provide the Veteran’s claims file to the July 2020 VA examiner. If the July 2020 VA examiner is unavailable, provide the Veteran’s claims file to an appropriately-qualified examiner. The examiner shall review the claims file, including this remand, and provide an addendum opinion as to whether the Veteran’s peripheral neuropathy is at least as likely as not incurred in or a result of his active-duty service, including his exposure to contaminants in the water supply of Camp Lejeune. The examiner should be aware that the absence of peripheral neuropathy from the list of conditions qualifying for presumptive consideration does not, on its own, prevent them from making a positive determination on a direct basis. If the examiner concludes that the Veteran’s peripheral neuropathy is more likely than not due to an alternative non-service-connected etiology, such as the Veteran’s celiac disease, the examiner shall clearly explain the reasoning that would support such a conclusion. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.