Citation Nr: 21021604 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-08 917 DATE: April 13, 2021 REMANDED Entitlement to service connection for neurological condition of the right upper extremity, to include as due to herbicide exposure and/or as secondary to service-connected diabetes mellitus, is remanded. Entitlement to service connection for neurological condition of the left upper extremity, to include as due to herbicide exposure and/or as secondary to service-connected diabetes mellitus, is remanded. REASONS FOR REMAND This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7101(a)(2). The Veteran served on active duty in the Army from November 1967 to November 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. These matters were previously before the Board in November 2017, May 2018, June 2020, and January 2021, where they were remanded for additional development. The Board notes that there was not substantial compliance with its January 2021 remand directives, and regrettably finds another remand is necessary prior to readjudication of the claim.. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). As noted above, the Board remanded the Veteran’s claims for additional development, requesting that the RO obtain an addendum VA medical opinion that adequately addresses the Veteran’s claims. The basis for this remand was due to the August 2020 VA examiner not substantially complying with the remand requirements, as previously designated in the Board’s June 2020 decision, with respect to adequately assessing the Veteran’s obesity as an “intermediate step,” as caused and/or aggravated by any of the Veteran’s service-connected disabilities, pursuant to VA General Counsel opinion VAOPGCPREC 1-2017. Specifically, the Board in the January 2021 decision found that the August 2020 VA examiner failed to substantially answer the questions of whether any of the Veteran’s service-connected disabilities could have caused or aggravated the Veteran’s obesity, and whether obesity was a substantial factor in causing the Veteran’s carpal tunnel syndrome (CTS) of the bilateral upper extremities. See Remand BVA or CAVC, January 2021. In January 2021, an addendum VA medical opinion was completed in response to the Board’s January 2021 remand. However, upon review, the Board finds this opinion to be inadequate for adjudicative purposes, as the examiner, once again, failed to substantially answer the questions noted above. With respect to the question of whether any of the Veteran’s service-connected disabilities could have caused or aggravated the Veteran’s obesity, the examiner merely provided conclusory statements unsupported by an actual rationale; as well as, provided the notation that obesity “results from a combination of causes and contributing factors…[t]herefore, it cannot be etiologically linked to one cause solely” (see C&P Exam, January 2021), however, failed to discuss whether any of those causes or contributing factors were the Veteran’s service-connected disabilities, solely or as a collective. Additionally, the examiner stated that there was no evidence of aggravation, which the Board finds to be contradictory, as the same examiner, in her August 2020 VA addendum opinion, noted that the multiple and complex endocrine dysfunction associated with the Veteran’s service-connected psychiatric conditions can be related to an increased risk of some weight gain, which implies a relationship, or at the very least, a possible aggravation of the Veteran’s psychiatric conditions and his obesity/weight gain; and therefore, should have been addressed by the examiner. With respect to the question of whether obesity was a substantial factor in causing the Veteran’s carpal tunnel syndrome of the bilateral upper extremities, the examiner merely noted that obesity does not cause CTS, but it could worsen its symptoms, without actually discussing or addressing whether it is a substantial factor as requested. Furthermore, the Board notes that the Veteran contends that his neurological condition of the bilateral upper extremities is directly related to his exposure to Agent Orange during active duty service. The Board notes that the Veteran has verified in-country service in Vietnam, and was thus presumptively exposed to herbicide agents. However, a review of the file does not reflect that the Veteran’s neurological condition of the bilateral upper extremities had its onset or manifested to a compensable degree within a year after the last date on which the Veteran was exposed to Agent Orange to warrant presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309. Nevertheless, the Veteran is not precluded from establishing service connection with proof of actual or direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). With this, the Board notes that the Veteran, as of this date, has not been provided a medical opinion assessing whether his neurological condition of the bilateral upper extremities is directly related to his conceded exposure to Agent Orange. Therefore, the Board finds that the Veteran should be provided additional addendum VA medical opinions that adequately addresses the Veteran’s claims, in accordance with VA’s duty to assist and in compliance with Stegall. Accordingly, a remand is necessary to address the matters discussed above. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his neurological condition of the bilateral upper extremities and obtain any outstanding records and associate them with the Veteran’s claims file. 2. After associating all newly acquired records with the claims file, obtain an addendum VA medical opinion from an appropriate clinician other than the one who conducted the prior addendum opinions in August 2020 and January 2021. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. The Veteran should be scheduled for another examination if deemed necessary by the person providing the addendum report to address the following: (a) Opine whether it is at least as likely as not (50 percent or greater probability) the Veteran’s neurological condition of the bilateral upper extremities, to include CTS, had its onset during any period of active duty service, or is otherwise etiologically related to his active duty service, to include the conceded exposure to herbicides. (b) Opine whether the Veteran’s obesity was an intermediate step between his current neurological condition of the bilateral upper extremities, to include CTS, and any service-connected disability. In doing so, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any service-connected disability caused the Veteran to become obese or gain weight and/or aggravated his obesity/weight gain. If so, the examiner must opine whether the obesity was a substantial factor in causing the Veteran’s neurological condition of the bilateral upper extremities, to include CTS, and whether the Veteran’s neurological condition of the bilateral upper extremities, to include CTS, would NOT have occurred or worsened but for the weight gain caused or aggravated by his service-connected disability. (c) Any opinion should include a detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran’s lay statements regarding the nature, onset, and chronicity of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that his reports must be considered in formulating the requested opinion. (d) If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to 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. Signature on the next page DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, 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.