Citation Nr: 21027419 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-45 708 DATE: May 5, 2021 REMANDED Entitlement to service connection for peripheral neuropathy of the lower extremities as a result of in-service exposure to herbicide agents is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Marine Corps from September 1968 to April 1970, to include service in the Republic of Vietnam from April 1969 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. As a preliminary matter, the September 2015 rating decision denied the Veteran's claim for service connection for peripheral neuropathy on presumptive basis only. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Federal Circuit has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). This is the basis of the Veteran's claim, that he was exposed to herbicide agents during service and that this is the cause of his current peripheral neuropathy. A February 2021 statement from the Veteran's VA neurologist noted that the Veteran was not considered to be a diabetic and that it was his opinion that the Veteran had peripheral neuropathy from exposure to Agent Orange while he was in Vietnam. However, this opinion does not reflect a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). This opinion also appears to be incomplete, as the neurologist wrote: "NCS/EMG showed XXX, which is consistent with Agent Orange neuropathy." It is not clear from the remainder of the opinion what the neurologist was intending to communicate in that sentence. Given that the Veteran has had ongoing treatment for peripheral neuropathy during the appeal period, and there is an concession of in-service herbicide agent exposure, the Board finds that the low threshold to warrant a VA examination has been met. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). On remand, an opinion should be obtained. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After records development is completed, forward the claims file to a neurologist or another appropriate examiner to obtain an opinion to determine the etiology of his claimed peripheral neuropathy. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for further in-person examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following question: Is at least as likely as not (50 percent or greater probability) that the Veteran's peripheral neuropathy had its onset during any period of service, or is otherwise related to such period of service? The examiner should note that the Veteran's exposure to herbicide agent has been conceded. The examiner should specifically address the February 2021 opinion from Dr. D.F. finding that the Veteran did not suffer from diabetic neuropathy and relating his peripheral neuropathy to his in-service herbicide agent exposure. In offering such opinions, the examiner should consider the Veteran's statements. The examiner must provide a complete rationale for all opinions and conclusions reached. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the Agency of Original Jurisdiction (AOJ) should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. J. Kim, 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.