Citation Nr: 21023514 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-28 633A DATE: April 20, 2021 REMANDED Entitlement to service connection for left upper extremity neuropathy is remanded. Entitlement to service connection for left lower extremity neuropathy is remanded. Entitlement to service connection for right lower extremity neuropathy is remanded. Entitlement to service connection for right upper extremity neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from June 1983 to August 1991. The Board previously remanded this case for additional development in October 2018. The matter has now returned to the Board for appellate review. 1. Entitlement to service connection for left upper extremity neuropathy is remanded. 2. Entitlement to service connection for left lower extremity neuropathy is remanded. 3. Entitlement to service connection for right lower extremity neuropathy is remanded. 4. Entitlement to service connection for right upper extremity neuropathy is remanded. The Veteran seeks service connection for peripheral neuropathy of the left upper extremity, right upper extremity, left lower extremity, and right lower extremity. As noted above, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) to provide the Veteran with a VA examination to determine the nature and etiology of his claimed bilateral upper and lower extremities neuropathy. In particular, the AOJ was directed to determine if the Veteran’s claim met the diagnostic criteria for a neurological disorder for any extremity. Further, the Board explained that since the Veteran had service in the Southwest Asia theater of operations, the AOJ should obtain a medical opinion to specifically consider whether the Veteran’s neurological symptoms of the bilateral upper and lower extremities are due to a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, or is an individual pathology which is not traceable to active duty service. In August 2019, the Veteran was afforded a VA examination in accordance with the October 2018 remand. However, while the examiner determined that the Veteran did not have any peripheral nerve disorder, the examiner did not conduct any examination or render any opinion as to whether the Veteran had a qualifying chronic disability of the bilateral upper and lower extremities manifested by neurologic and/or neuropsychological signs or symptoms, including as part of a multi-symptom illness. Therefore, the Board finds that the August 2019 VA examination fails to substantially comply with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). Accordingly, to ensure compliance with the October 2018 remand directives, and to ensure that any decision rendered in the Veteran’s appeal is based on sufficient evidence, the Board finds that the Veteran should be afforded a VA examination to determine whether his neurological symptoms are not otherwise a manifestation of a qualifying chronic disability, including as part of a multi-symptom illness. On remand, the AOJ should also obtain any outstanding VA treatment records. Additionally, the Veteran should be provided the opportunity to identify any private treatment records that are relevant to his appeal. The matters are REMANDED for the following action: Schedule the Veteran for an appropriate examination to determine the nature and etiology of claimed his neurological disorder. The examiner must review the entire claims file, including a copy of this remand. The examiner should conduct all appropriate diagnostic testing. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. The examiner is asked to provide responses to the following: A) Identify the Veteran’s objective indications of a disability. “Objective indications” of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) By history, physical examination, or laboratory testing, can the Veteran’s objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. C) If the Veteran’s objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran’s departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) If the Veteran’s objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran’s specific case and cannot be based on the etiology of the disease or disability population as a whole. E) If the Veteran’s objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran’s specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. F) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s diagnosed condition was incurred in, or is otherwise related to, [his/her] active service? A complete rationale must be provided for all opinions expressed. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.