Citation Nr: 21026880 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 18-33 213 DATE: May 4, 2021 REMANDED Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from March 1966 to February 1969, including service in the Republic of Vietnam from December 1966 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied the Veteran's claim of service connection for peripheral neuropathy. The Veteran filed a timely Notice of Disagreement (NOD), received by VA in October 2017. Following the issuance of a Statement of the Case (SOC) in May 2018, the Veteran perfected a timely appeal via his submission of a VA Form 9 in June 2018. In July 2020, the Veteran testified at a Board hearing in Washington, D.C., before the undersigned Veterans Law Judge. A copy of the hearing transcript is a part of the record. In August 2020, the Board remanded the matter for further evidentiary development. In January 2021, the RO issued a Supplemental Statement of the Case (SSOC) and the Veteran's appeal is now returned to the Board for further appellate proceedings. 1. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities is remanded. The Veteran contends that his bilateral upper and lower extremity peripheral neuropathy was caused by exposure to herbicide agents during his service in the Republic of Vietnam. In accordance with the Board's August 2020 remand instructions, the Veteran was afforded a peripheral nerves examination in December 2020. The examiner explained that the physical examination she had conducted on the day of the examination suggested that the Veteran exhibited, inter alia, mild peripheral neuropathy in the fingers and hands and moderate peripheral neuropathy in the toes and feet in a stocking and glove distribution. She indicated that this "stocking and glove" distribution corresponds with that expected in chemical exposure peripheral neuropathy. Moreover, the Veteran's reported sensory loss was equivalent in the right and left extremities, which was also as expected with exposure-related neuropathy. After examining the Veteran and reviewing the record, however, the examiner concluded that it was less likely than not that the Veteran's peripheral neuropathy had been incurred in or caused by service. She explained, inter alia, that the Veteran's neuropathy had "not been sufficiently evaluated to determine type or cause of the neurologic condition." In January 2021, the RO requested clarification, explaining that "the examiner should request/conduct any additional test necessary, and conduct any additional examinations necessary to determine the type or cause of the neurological conditions." The examiner responded that a review of the Veteran's treatment records reflected that his symptoms had been attributed to various causes, including carpal tunnel syndrome, a previous cerebrovascular attack, and diabetes. She explained that an EMG (presumably the diagnostic test needed to determine the etiology of the Veteran's symptoms), could only be performed at the discretion of the Veteran's neurologist, not a VA Compensation and Pension examiner. After reviewing the available record, the Board finds that there is insufficient evidence to decide the claim and that an additional medical opinion is required to resolve the outstanding questions of diagnosis and etiology. First, the Board notes that the Veteran has not been diagnosed as having diabetes. His VA clinical records note a diagnosis of "pre diabetes" in March 2017 due to laboratory test results showing blood glucose levels of 5.9%. Subsequent laboratory testing, however, showed that the Veteran's glucose levels have remained below 6.0%, which was noted to be within the range for nondiabetics. See e.g. November 2020 laboratory testing. It is unclear how the Veteran's symptoms could be attributed to diabetes if he has not been diagnosed as having that disability. With respect to the examiner's inability to perform EMG testing for the purpose of establishing the etiology of the Veteran's symptoms, the Board notes that although the exact nature and etiology of the Veteran's symptoms apparently cannot be established with certainty without EMG testing, absolute certainty is not required in claims for VA benefits. Rather, under the benefit-of-the-doubt rule, for the Veteran to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, if EMG testing is not available, the examiner is asked to provide an opinion (based on a clinical examination of the Veteran, any other available diagnostic testing, and a review of the Veteran's clinical records, reported medical history, and any relevant medical studies) as to whether it is at least as likely as not that any current peripheral neuropathy of the upper and lower extremities is causally related to his legally presumed exposure to herbicide agents during active duty. The matter is REMANDED for the following action: 1. Schedule the Veteran for a medical examination to determine the nature and etiology of his claimed peripheral neuropathy of the upper and lower extremities. After examining the Veteran, performing any available diagnostic testing, and reviewing the record, the examiner should provide an opinion, with supporting rationale, as to the following: Is it at least as likely as not (50 percent or greater likelihood) that the Veteran currently has peripheral neuropathy of the upper and/or lower extremities? Why or why not? If not, is it at least as likely as not (50 percent or greater likelihood) that the Veteran currently has any other disability of the upper and/or lower extremities which is manifested symptoms such as tingling, burning, or numbness? Why or why not? In providing an opinion on the current diagnosis or diagnoses, the examiner should consider the relevant evidence of record, to include prior diagnoses of carpal tunnel syndrome and neuropathy. For each upper and/or lower neurological disability identified, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not (50 percent or greater likelihood) that such disability is causally related to the Veteran's legally presumed exposure to herbicide agents in Vietnam between December 1966 and December 1967. If it is not possible to provide these opinions to the required degree of certainty (50 percent or greater likelihood) without resorting to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Penn, 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.