Citation Nr: 21026774 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-15 954 DATE: May 4, 2021 REMANDED Entitlement to service connection for idiopathic peripheral neuropathy of the bilateral lower extremities, to include as due to herbicide agent exposure or service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from May 1966 to May 1968. This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs Regional Office. In March 2019, the Veteran testified at a hearing before the undersigned. A transcript of the hearing has been associated with the claims file. This matter was most recently before the Board in December 2020 when it was remanded to the Agency of Original Jurisdiction (AOJ) for a VA opinion. Pursuant to the December 2020 Board remand, a medical opinion was provided in January 2021. The examiner was directed to provide an opinion as to whether the Veteran's peripheral neuropathy was due to herbicide agent exposure and/or secondary to his service-connected cardiac disabilities. The examiner did not provide an opinion as to secondary service connection. Moreover, with regard to whether the Veteran's peripheral neuropathy was due to herbicide agent exposure, the examiner stated that "idiopathic peripheral neuropathy is not considered a presumptive disease associated with Agent Orange exposure." However, the fact that the disability is not a presumptive condition does not rule out the possibility that the Veteran's claim can be substantiated on a direct service connection basis if the facts and circumstances of his case place the evidentiary record at least in equipoise. Based on this statement, however, it is unclear whether the examiner based his negative opinion solely on the fact that the disability is not a "presumptive disease." The Board sincerely regrets the additional delay occasioned by multiple remands. However, the Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: Obtain an addendum opinion by a different examiner than who provided the January 2021 opinion to determine the nature and etiology of the Veteran's idiopathic peripheral neuropathy of the bilateral lower extremities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteranif deemed necessary by the examinerand considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: (a.) Whether it is at least as likely as not (a 50 percent probability or greater) that his idiopathic peripheral neuropathy of the bilateral lower extremities was incurred in, aggravated by, or etiologically related to his military service to include herbicide agent exposure. Herbicide agent exposure is not limited to the presumptive service connection but also includes service connection on a direct basis under Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). (b.) Whether it is at least as likely as not (a 50 percent probability or greater) that his idiopathic peripheral neuropathy of the bilateral lower extremities was caused or aggravated by his service-connected cardiac disabilities. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that a disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. Additionally, in providing his or her opinion, the examiner should include consideration of the supporting articles provided by the Veteran. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, 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.