Citation Nr: 21029582 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 19-22 473 DATE: May 14, 2021 REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to service-connected diabetes mellitus type II or a due to herbicide exposure, is remanded. Entitlement to service connection for peripheral neuropathy of the left lower peripheral neuropathy, to include as secondary to service-connected diabetes mellitus type II or as due to herbicide exposure, is remanded. Entitlement to service connection for multiple sclerosis, to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1954 to November 1974. He has confirmed service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board issued a decision denying the claims for service connection for tinnitus, peripheral neuropathy of the bilateral lower extremity and multiple sclerosis. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In August 2020, the parties filed a Joint Motion for Remand partially vacating the Board's October 2019 to the extent that it denied service connection for these disabilities and remanded the matter for readjudication in light of the Joint Motion for Partial Remand (JMPR). In light of points raised in the parties' January 2021 JMPR, remand for additional development on the claims on appeal is warranted. 1. Entitlement to service connection for tinnitus is remanded. The Veteran was afforded a VA audiology examination in August 2017, at which time the Veteran reported that he first noticed tinnitus approximately 5 years prior to the examination. The examiner opined that the claimed tinnitus was less likely than not caused by or a result of service, relying in part on the Veteran's report of onset of tinnitus 38 years after service separation. However, as noted by the parties in the JMPR, post-service treatment records document complaint of tinnitus as early as November 1985much earlier than the Veteran's self-reported history on examination in 2017. In addition, a report from the Eisenhower Army Medical Center dated in 1998 reflects complaint of ringing sensation in the right ear. Continued records dated from 2005 onward include tinnitus in the list of active problems. Because the examiner's opinion is based on a factually inaccurate predicate, the Board finds the 2017 opinion inadequate for adjudication purposes. See Reonal v. Brown, 5 Vet. App. 458, 461(1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). An additional examination and opinion are warranted to address whether the Veteran's tinnitus is related to service. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). 2. & 3. Entitlement to service connection for peripheral neuropathy of the right and left lower extremities, to include as secondary to service-connected diabetes mellitus type II or as due to exposure to herbicides, is remanded. As noted by the parties in the JMPR, although the Board previously determined in the vacated decision that in the Veteran did not have a diagnosis of peripheral neuropathy, a 2019 statement from an Army physician notes that the Veteran suffered from peripheral neuropathy likely secondary to diabetes mellitus. However, the examiner did not provide any rationale or support as to the diagnosis or etiological opinion. Further treatment records from the Eisenhower Army Medical Center include notation of peripheral neuropathy in the active problems list. However, the Board notes that other treatment records ascribe the Veteran's difficulties with gait and deficits related to his lower extremities to his multiple sclerosis. In addition, a prior electrodiagnostic study in April 2006 reveals moderate right L2 and L3 radiculopathy and mild right L5 radiculopathy. However, there was no evidence of peripheral neuropathy at that time. Prior VA examinations pertaining to the Veteran's diabetes mellitus also fail to note peripheral neuropathy of lower extremities as a related complication. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Given the conflicting diagnoses of record and the fact that the Veteran has not been afforded a VA examination pertaining to his peripheral neuropathy claims, an examination with medical opinion based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale would be helpful in resolving the claims for service connection. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 4. Entitlement to service connection for multiple sclerosis is remanded. The Veteran contends that his multiple sclerosis first manifest in service, or in the alternative is related to his in-service herbicide exposure. The Board notes that pertinent regulations provide that service connection for multiple sclerosis as a chronic disease may be awarded if the disease manifest to a degree of 10 percent or more within 7 years of discharge from service. See 38 C.F.R. §§ 3.307, 3.309. The Veteran's post-service treatment records reflect diagnosis of multiple sclerosis as early as 2006. The Veteran, however, reports earlier onset of symptoms. In the JMPR, the parties pointed out evidence indicative of potential earlier onset. In a March 2019 statement, the Veteran's wife reported that the Veteran was limping prior to his retirement from service in 1974. In an August 2013 treatment note, Dr. C. noted that symptoms of multiple sclerosis can include progressive weakness or difficulty walking. In addition, a November 2014 report from Dr. W. notes that while the Veteran's diagnosis was made rather late in life, he had a prior episode that was not treated as demyelinating disease. A September 2018 report reflects that while the Veteran had been diagnosed with multiple sclerosis in 2006, he had noted issues with right leg weakness and gait difficulties for several years. A 2019 report notes a history of right leg weakness that is longstanding and has been ascribed to multiple sclerosis. The Veteran has not been afforded a VA examination to determine the nature and etiology of the claimed multiple sclerosis. Given the foregoing, the Board finds that an examination with medical opinion based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale would be helpful in resolving the claim for service connection. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder updated treatment records, including updated VA treatment records. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed peripheral neuropathy of the right and left lower extremities. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. The examiner should clearly indicate whether the Veteran has, or ever has had, peripheral neuropathy of either lower extremity. Then, the examiner should opine as to whether it is at least at likely as not that the Veteran's peripheral neuropathy of the right and/or left lower extremity had its onset in service or within one year of discharge from service, or is otherwise related to service; or 2) was caused by or aggravated by (increased in severity beyond the natural progress of the condition) by the service-connected diabetes mellitus type II. In providing the requested opinion the examiner is asked to consider and address the Veteran and his wife's report of earlier onset of symptoms, to including limping prior to discharge, as well as post-service treatment records noting assessment of peripheral neuropathy and the 2019 statement from an Army physician noting that the Veteran suffered from peripheral neuropathy likely secondary to diabetes mellitus. The examiner is also advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be taken into account, along with the other evidence of record, in formulating the requested opinions. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed multiple sclerosis. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. The examiner should address whether it is at least at likely as not that the Veteran's multiple sclerosis had its onset in service or within seven years of discharge from service, or is otherwise related to service, to include his presumed exposure to herbicides therein. In providing the requested opinion the examiner is asked to consider and address the Veteran and his wife's report of earlier onset of symptoms, to including limping prior to discharge, as well as post-service treatment records reflecting symptoms prior to diagnosis. The examiner is also advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be taken into account, along with the other evidence of record, in formulating the requested opinions. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed tinnitus. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. The examiner should indicate whether the Veteran's tinnitus at least at likely has not 1) had its onset in or is otherwise related active service, to include noise exposure therein, or 2) was caused by or aggravated by (increased in severity beyond the natural progress of the condition) by the service-connected bilateral hearing loss. In providing the requested opinion, the examiner is asked to consider and address the reports of tinnitus in private treatment records noted as early as 1985, with notation again in 1998 and from 2005. (Continued on the next page) The examiner is advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be taken into account, along with the other evidence of record, in formulating the requested opinions. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. E. Wilkerson, 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.