Citation Nr: 21027937 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 16-24 358 DATE: May 7, 2021 REMANDED Entitlement to service connection for peripheral neuropathy of bilateral upper extremities (BUE), to include as due to exposure to herbicide agents and/or as secondary to lumbosacral degenerative disc disease with strain and spondylosis status post laminectomy, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to April 1968, to include service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2014 by a Department of Veterans Affairs (VA) Regional Office. In September 2018 and January 2021, the Board remanded the matter for additional development and it now returns for further appellate review. Entitlement to service connection for peripheral neuropathy of the BUE, to include as due to exposure to herbicide agents and/or as secondary to lumbosacral degenerative disc disease with strain and spondylosis status post laminectomy. As noted in the September 2018 remand, the Veteran contends that his peripheral neuropathy of the BUE is related to his acknowledged in-service exposure to herbicide agents, or is caused or aggravated by his service-connected back disability. With regard to the former theory of entitlement, the Board found at such time that, as the Veteran's peripheral neuropathy of the BUE had its onset in March 2011, it was not subject to presumptive service connection as it was not early onset peripheral neuropathy, which must have manifested within one year of the last date on which he was exposed to an herbicide agent during service. Nonetheless, as the Veteran was not precluded from establishing service connection with proof of direct causation, and no opinion addressing whether such disorder was caused or aggravated by his service-connected back disability had been obtained, the Board remanded the claim in order to obtain opinions addressing such matters. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thereafter, addendum opinions were obtained in July 2020; however, as such did not address whether the Veteran's peripheral neuropathy of the BUE was related to his acknowledged in-service exposure to herbicide agents, and found that he did not have a diagnosis of peripheral neuropathy of the left upper extremity despite the fact that such was diagnosed during the pendency of the claim at an April 2014 VA examination, the Board remanded the claims in January 2021 so as to obtain an addendum opinion addressing all relevant inquiries. In February 2021, such addendum opinion was obtained. At such time, the examiner opined that the Veteran's peripheral neuropathy of the BUE was less likely than not incurred in or caused by his acknowledged in-service exposure to herbicide agents. In support of such opinion, he noted that, while VA has established a presumptive of service connection for various diseases as related to exposure to herbicide agents due to a statistically significant association with such exposure, such did not include peripheral neuropathy (other than early onset peripheral neuropathy). The examiner further opined that it was less likely than not that the Veteran's peripheral neuropathy of the BUE is proximately due to, the result of, or aggravated by his back disability as there was no pathology or link between upper extremity peripheral neuropathy and lumbosacral degenerative disc disease with strain and spondylosis, status post laminectomy. As the February 2021 VA examiner based his opinion that the Veteran's peripheral neuropathy of the BUE was less likely than not related to his acknowledged in-service exposure to herbicide agents solely on the fact that such disease has not been recognized by VA to be presumptively related to such exposure, the Board finds that such is inadequate to decide the claim. In this regard, the U.S. Court of Appeals for Veterans Claims has held that, to permit the denial of service connection for a disease on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection. See Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009). Thus, a remand is necessary in order to obtain an addendum opinion addressing such matter. The matter is REMANDED for the following action: Return the record, to include a copy of this remand, to the VA examiner who provided an opinion addressing the etiology of the Veteran's peripheral neuropathy of the BUE in February 2021, or an appropriate substitute if he is unavailable, for an addendum opinion on such matter. Following a review of the record, the examiner should offer an opinion as whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's peripheral neuropathy of the BUE is related to his acknowledged in-service exposure to herbicide agents? In this regard, the examiner is advised that, for the purpose of offering such opinion, he or she should assume that the Veteran has a current diagnosis of peripheral neuropathy of the right and left upper extremities. In offering such opinion, the examiner is advised that an unfavorable opinion may not be solely on the fact that VA has not included peripheral neuropathy (other than early onset peripheral neuropathy) on the list of diseases acknowledged to be presumptively related to exposure to herbicide agents. In other words, the Board needs an opinion as to the likelihood that the Veteran's peripheral neuropathy of the BUE is related to his in-service exposure to herbicide agents despite the fact such is not included on the presumptive list. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.