Citation Nr: 21024254 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-41 048A DATE: April 22, 2021 REMANDED Entitlement to service connection for transverse myelitis, to include as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1965 to June 1968. This case is before the Board of Veterans’ Appeals (Board) on appeal from April 2014 and September 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in June 2019. 1. Entitlement to service connection for transverse myelitis, to include as due to exposure to herbicide agents, is remanded. The Veteran contends that his transverse myelitis is related to service, including his in-service exposure to herbicide agents. The Veteran currently suffers from residuals associated with transverse myelitis, including urinary and bowel urgency, sexual dysfunction and difficulty walking more than a block. See August 2019 VA examination. The service treatment records (STRs) do not contain complaints or treatment related to transverse myelitis; however, the Veteran was first diagnosed with the disease in August 1970, a little over two years after his discharge from military service. Hospital records reflect that the Veteran was in good health until, over a period of three weeks, he noted numbness in his toes, incontinence, weakness of gait, and worsened to the point where he was unable to walk at the time of his admission to the hospital in August 1970. A lumbar myelogram and cisternal puncture revealed freely moving dynamics, no block or masses seen, thus it was thought that the cause of the Veteran’s transverse myelitis was viral. See August 1970 Hospital Summary VA Hospital Anne Arbor Michigan. A June 2019 Board decision remanded the Veteran’s claim to obtain an examination and medical nexus opinion concerning the etiology of his transverse myelitis. In August 2019, the Veteran was afforded a VA examination and an opinion was obtained from a primary care medical provider regarding whether it was at least as likely as not that the Veteran’s currently diagnosed transverse myelitis was related to service, to include exposure to herbicide agents. After the examiner rendered his opinion and provided a rationale, he explained that transverse myelitis is a condition that is generally dealt with by neurologists as it is a specialty case. He noted that he was a primary care provider and that his opinion was based on primary care medical knowledge. He stated that any further questions and clarifications should be sought from a neurologist. During an April 2021 Informal Hearing Presentation, the Veteran’s representative argued that the 2019 examiner was not qualified and requested a remand for a new opinion by a neurologist. Here, the August 2019 VA examiner explicitly called his own qualifications into question and the Veteran’s representative challenged the examiner’s competency, noting that the examiner himself indicated that he was not qualified as a specialist to provide an opinion on transverse myelitis. In this case, the Board finds that the August 2019 examiner was not competent to provide an opinion on the matter of transverse myelitis. Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019) (noting that after the Veteran challenges the competency of a medical examiner, the Board must make a factual finding regarding the qualifications of the examiner and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion). As such, the claim should be remanded to obtain a medical opinion from a neurologist regarding the likelihood that the Veteran’s transverse myelitis is related to service. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an opinion, it must ensure that the opinion is adequate.) The matter is REMANDED for the following actions: 1. Associate updated VA treatment records with the claims folder. 2. After the above records have been associated, obtain an expert medical opinion from a neurologist regarding the etiology of the Veteran’s currently diagnosed transverse myelitis. The Veteran’s claims file (to include this remand) must be reviewed by the neurologist. The neurologist should address the following questions based on a review of all medical records and lay statements of record. (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s transverse myelitis had its onset during service, or is otherwise related to service, including the Veteran’s in-service vaccinations? In forming an opinion, the neurologist should consider the circumstances surrounding the onset of the Veteran’s transverse myelitis in August 1970, two years after discharge, which is detailed above. The neurologist should specifically discuss the medical literature from the Mayo Clinic submitted by the Veteran in November 2014, which identifies vaccinations for infectious diseases as occasionally being implicated as a possible trigger for transverse myelitis, along with considering the November 1967 notation in the STRs reflecting that the Veteran had large welts after receiving a shot. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s transverse myelitis is related to his in-service exposure to herbicide agents, such as Agent Orange? The neurologist is informed that an opinion based solely on the fact that transverse myelitis is not on VA’s list of recognized diseases associated with herbicide agent exposure will be deemed inadequate. (c) Did the Veteran manifest any symptoms of transverse myelitis within one year of his separation from service in June 1968? Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alison M. Mecone, 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.