Citation Nr: 21026051 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-30 481 DATE: April 29, 2021 REMANDED 1. Entitlement to service connection for peripheral neuropathy, left upper extremity (hand numbness) is remanded. 2. Entitlement to service connection for peripheral neuropathy, right upper extremity (hand numbness) is remanded. 3. Entitlement to service connection for peripheral neuropathy, left lower extremity leg and foot numbness) is remanded. 4. Entitlement to service connection for peripheral neuropathy, right lower extremity (leg and foot numbness) is remanded. REASONS FOR REMAND The appellant is a Veteran who had active service from March 1969 to March 1973, with service in Vietnam from February 1970 to February 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 Department of Veterans Affairs (VA) rating decision. In February 2021 a videoconference hearing was held before the undersigned; a transcript is associated with the claims file. 1., 2., 3., 4. Entitlement to service connection for left and right upper extremity and left and right lower extremity peripheral neuropathy (claimed as numbness in each extremity) As an initial matter, the Board notes that the Veteran served in Vietnam during the Vietnam Era, and is presumed to have been exposed to herbicide agents during such service. Under 38 U.S.C. §1116; 38 C.F.R. §3.309(e), early onset peripheral neuropathy may be presumed to be service-connected if manifested in a Veteran who was exposed to herbicide agents in service. Governing regulations provide that early onset peripheral neuropathy is peripheral neuropathy that became manifest within one year following the last date of exposure to an herbicide agent. See 38 C.F.R. §§ 3.307, 3.309. The Veteran received a diagnosis of sensorimotor peripheral neuropathy in February 2014 (with a history of alcohol use noted), several decades after his service in Vietnam. Thus, based on the current record, he is not shown to have early-onset peripheral neuropathy, and a presumption of service connection for peripheral neuropathy of his bilateral upper and lower extremities based on his acknowledged exposure to herbicide agents is not warranted. However, he is not precluded from nonetheless seeking service connection for peripheral neuropathy of the upper and lower extremities as due to exposure to herbicide agents a direct basis (by competent affirmative evidence establishing that his peripheral neuropathy is due to such exposure. See 38 C.F.R. §§ 3.303, 3.304; see also Combee v Brown, 34 F. 3d 1039 (1994). A review of the evidence of record found some such evidence. In April 2014, a VA psychiatrist, Dr. R. K., noted “Neurology stated this poly neuropathy was likely alcohol related. I think it is more likely related to Agent Orange.” See Capri, August 2014 at p.184 of 209. The examiner did not include an explanation of rationale with the opinion. An April 2014 VA podiatry note reflects that the Veteran was advised that his foot pain was due to neuropathy, which could be from alcohol abuse, cardiovascular accident (CVA), or Agent Orange exposure. A May 2014 VA psychiatry record notes a diagnosis of PTSD and neuropathic pain likely secondary to Agent Orange. In September 2017 correspondence, a VA examiner, Dr. M. S., opined that the Veteran’s “exposure to Agent Orange is at least as likely as not, to have played a part in his development of peripheral neuropathy.” See Medical Treatment Record-Government Facility, October 2017. The rationale provided was that the Veteran had documented exposure to Agent Orange and EMG evidence of neuropathy. The Board finds that this opinion is inadequate for rating purposes because it does not contain sufficient detail. 38 C.F.R. § 4.2 (2008). Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two, i.e., the exposure to Agent orange and the EMG-confirmed peripheral neuropathy). The Veteran has not been afforded a VA examination in connection with these claims. In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a veteran’s claim for benefits, there are four factors for consideration. They are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in-service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). The threshold for determining a possibility of a nexus to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, all four of the factors for consideration are met; the Veteran has a current diagnosis of upper and lower peripheral neuropathy; he is acknowledged to have been exposed to herbicide agents during service; there is medical (thus competent) evidence that his peripheral neuropathy may be related to his exposure to Agent Orange in service; and while his peripheral does not meet the definition of early-onset peripheral neuropathy, and service connection under 38 U.S.C. §1116 may not be presumed, there is insufficient medical evidence to decide the claims under Combee (based on competent affirmative evidence showing a nexus), because the opinions in support of the claims lack adequate rationale, and are therefore inadequate for rating purposes. The low threshold standard for deciding when development for a medical opinion is necessary is clearly met. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Development for such opinion is necessary. The matters are REMANDED for the following: Arrange for the Veteran’s claims file to be forwarded to an appropriate clinician (e.g., in neurology) for review and a medical advisory opinion regarding the etiology of his peripheral neuropathy of both upper and both lower extremities. [If further examination of the Veteran is deemed necessary, such should be arranged.] The consulting clinician, noting the opinions in the record supporting the claim, should provide an opinion that responds to the following: (a) Identify the likely etiology for the Veteran’s peripheral neuropathy of both upper and both lower extremities. Specifically, is it at least as likely as not (i.e., a 50 percent or greater probability) that the peripheral neuropathy is etiologically related his active duty service, to include as due to exposure to herbicide agents in service? (b) If the response to (a) is no, identify the etiology for the peripheral neuropathy that (based on the evidence of record) is considered to be more likely, and explain why that is so. The consulting provider is advised that under governing caselaw the fact that the Veteran’s peripheral neuropathy does not meet the regulatory definition of early-onset peripheral neuropathy, and may not warrant a presumption of service connection based on exposure to herbicide agents, cannot be the sole basis for a conclusion that the peripheral neuropathy is unrelated to service and exposure to herbicide agents therein. All opinions must include a full rationale that cites to supporting clinical data in the record and medical principles. The rationale provided should include comment on the cited notations and opinions in the record that suggest/support that the peripheral neuropathy is related to exposure to Agent Orange in service. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, 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.