Citation Nr: 21024199 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-31 643 DATE: April 22, 2021 REMANDED The appeal as to the claim of entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to herbicide exposure, is remanded. The appeal as to the claim of entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to herbicide exposure, is remanded. The appeal as to the claim of entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to herbicide exposure, is remanded. The appeal as to the claim of entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from March 1967 to February 1969. His service was under honorable conditions. Amongst other commendations, the Veteran is the recipient of the Vietnam Service Medal and the Army Commendation Medal. The matters are on appeal from a June 2014 rating decision. The Veteran contends that his current bilateral upper and lower extremity peripheral neuropathy disorders are the result of his exposure to herbicide agents during active service in Vietnam. He further contends that he has experienced numbness, pain, and burning of his upper and lower extremities since active service. In a June 2016 statement, the Veteran reported that he sought treatment in May 1971 for his ongoing symptoms. In this regard, the AOJ has confirmed the Veteran’s service in Vietnam during the Vietnam Era. Service treatment records are negative for complaints of, treatment for, or a diagnosis of peripheral neuropathy of the upper and lower extremities. Post-service records include an August 2010 private treatment record that notes the Veteran’s report of pain and numbness of the upper extremities. A December 2010 VA outpatient treatment record notes a reported history of neuropathy. In a March 2012 private record, J.B., M.D., noted that the Veteran has experienced decreased sensation in his legs since the Veteran initially sought treatment. J.B. diagnosed peripheral neuropathy. VA EMG studies dated in April 2013 and May 2016 resulted in an abnormal study with diffuse polyneuropathy of the upper and lower extremities. In May 2013 and February 2017 private treatment opinions, J.B. opined “concern” that the Veteran’s diagnosed neuropathy was due to his exposure to herbicides during service. J.B. further reported that he had treated the Veteran for 15 years. In January 2020, the Veteran underwent a VA peripheral nerve examination. The Veteran reported symptoms of pain, burning, and numbness since 1969, that have progressively worsened, to include difficulty walking, and lack of ability to grip. Upon examination and review of the record, the examiner assessed peripheral neuropathy of the upper and lower extremities. The examiner opined that the Veteran’s current peripheral neuropathy of the upper and lower extremities was “less likely” related to his exposure to herbicide agents during service, as his service treatment records were negative for treatment, post-service medical records did not document complaints until 2003, and peripheral neuropathy must manifest within one year of exposure to herbicide agents for presumptive service connection. The January 2020 VA examiner's opinion that delayed onset peripheral neuropathy was not due to herbicide exposure appears to be based on the fact that delayed onset peripheral neuropathy is not on the presumptive list of disease associated with exposure to herbicides. This opinion is inadequate because when service connection on a presumptive basis is not warranted, a veteran is not precluded from establishing service connection with proof of actual direct causation. See Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (holding that "to permit the denial of service connection for a disease on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection"). Rather, clinicians must provide specific reasons in support of opinions rendered, to include, as relevant, why any statistical or medical studies are found to be persuasive or unpersuasive, whether there are other risk factors that might be the cause of the Veteran's delayed onset peripheral neuropathy, and whether the Veteran's delayed onset peripheral neuropathy manifested in an unusual manner. Id. Moreover, the examiner failed to consider the Veteran’s assertions, that his peripheral neuropathy of the upper and lower extremities worsened since active service. Accordingly, a new VA medical opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the records should clearly be documented in the record. 2. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following a review of the record, the physician should state a medical opinion with respect to the right and left upper and lower extremity peripheral neuropathy disorders present during the period of the claim. The examiner must address the following: Is it at least as likely as not (i.e., at least 50 percent probable) that the current right and/or left upper and right and/or left lower extremity peripheral neuropathy disorders are etiologically related to the Veteran’s active service, to include conceded exposure to herbicide agents. In providing the opinion, the examiner must discuss the Veteran’s assertions, that his symptoms of right and left upper and lower extremity pain, numbness, and burning began in 1969 during service, with a progressive worsening of symptoms to the present. The examiner must also discuss the contemporaneous VA and private treatment records, and VA examination reports that note diagnoses of right and left upper and lower extremity peripheral neuropathy disorders. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 3. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided a Supplemental Statement of the Case and an appropriate period for response before the case is returned to the Board for further appellate action. A. ADAMSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Schinnerer, 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.