Citation Nr: 21030498 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-65 900 DATE: May 19, 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 January 1965 to January 1967, to include service in Vietnam. His decorations include the Vietnam Campaign Medal and the National Defense Service Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The original rating decision underlying the present appeal was issued by the RO in November 2014. After receiving additional evidence, the RO confirmed and continued the prior denial in the March 2015 rating decision. This case was previously before the Board in March 2019. The Board, in pertinent part, denied service connection for peripheral neuropathy of the bilateral upper and lower extremities. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 memorandum decision, the Court vacated the Board's decision and remanded the matter for further development and readjudication. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities is remanded. In its September 2020 decision, the Court found that VA had not satisfied its duty to notify the Veteran. The Court noted that VA has a duty to notify claimants if it is unable to obtain records not in the custody of a Federal department or agency, such as private medical records. 38 C.F.R. § 3.159(c)(1). More specifically, the Court noted that when VA makes reasonable efforts to obtain relevant non-Federal records, but is unable to obtain them, or, after continued efforts to obtain Federal records, concludes that it is reasonably certain they do not exist, or further efforts to obtain them would be futile, VA is to provide the claimant with oral or written notice of that fact. 38 U.S.C. § 5103A(b)(2)(A); 38 C.F.R. § 3.159(e)(1). Here, the RO requested a Dr. Hammer's private treatment records from West Bend Medical Clinic, and in April 2017 requested that the Veteran complete and return an updated VA Form 21-4142 authorizing the release of treatment records from West Bend Medical Clinic as part of Froedtert and Medical College of Wisconsin. The RO also notified the Veteran of its request to the Milwaukee VA Medical Center (VAMC) to search for those same private treatment records, and instructed the Milwaukee VAMC to conduct that search. The Veteran did not respond to the RO's request for an updated VA Form 21-4142, however, and it was ultimately determined that the private records did not otherwise exist at the Milwaukee VAMC. Thereafter, the RO did not notify the Veteran of the results of its efforts to obtain the private records from the Milwaukee VAMC or of the fact that the VAMC did not have the records. The Court found that fact significant as the Veteran did not take any further action with respect to those records because he believed that the VAMC had copies of them and the RO would obtain them on his behalf. Under the circumstances, the Court determined that a remand was required to have the Board ensure that VA fulfilled its notice and assistance obligations in that regard. The Court also found that the Board relied on an inadequate VA examination report when it denied the Veteran's claim. Specifically, the Court found that an October 2017 examiner failed to consider any risk factors, or the lack thereof, specific to the Veteran, and that the examiner based his conclusion simply on the fact that the claimed condition had its onset more than 30 years following herbicide exposure in Vietnam. The Court noted that the literature cited by the examiner suggested that two thirds of peripheral neuropathies are not idiopathic and that the examiner did not provide any further information as to why he was seemingly able to rule out an in-service cause of the Veteran's peripheral neuropathy. The Court further noted argument advanced by the Veteran to the effect that a neurologist had called for a thorough evaluation for diabetes, thyroid problems, Lyme's disease, or other health problems prior to considering his neuropathy idiopathic. The Court observed that there was no indication in the available VA treatment records that such an evaluation was ever conducted or, if it was, that the examiner reviewed the evaluation. The Court found that a remand was warranted to obtain a medical opinion that adequately addressed the likelihood that the Veteran's herbicide exposure caused his peripheral neuropathy. By the terms of the Court's decision, additional development is necessary. As the case requires remand, any updated records of treatment should also be procured. This matter is REMANDED for the following action: 1. Notify the Veteran that VA's efforts to obtain records of past private medical treatment from the Milwaukee VAMC were unsuccessful. The notice must include the identity of the records VA was unable to obtain; an explanation of the efforts VA made to obtain the records; a description of any further action VA will take regarding his claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless he submits the records VA was unable to obtain; and a notice that he is ultimately responsible for providing the evidence. See 38 C.F.R. § 3.159(e)(1). 2. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran should be notified as outlined at 38 C.F.R. § 3.159(e)(1). 3. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 4. After the foregoing has been completed to the extent possible, arrange to have the Veteran scheduled for a thorough evaluation for diabetes, thyroid problems, Lyme's disease, or any other health problems deemed necessary for purposes of determining whether the neuropathy of his bilateral upper and lower extremities is, in fact, idiopathic. All indicated tests should be conducted and the results reported, and a complete medical rationale for all opinions expressed must be provided. 5. Also make arrangements to provide the record on appeal to the VA examiner who previously offered opinions with respect to the etiology of the Veteran's neuropathy in October 2017. The examiner should be asked to review the expanded record and prepare a supplemental report on the question of whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any neuropathies of the Veteran's bilateral upper and/or lower extremities had their onset in, or are otherwise attributable to, his period of active service, to include his presumed exposure to herbicide agents in Vietnam. In so doing, the examiner should consider the likelihood that the Veteran's neuropathies are or are not idiopathic. The examiner must also consider any risk factors, or the lack thereof, that are specific to the Veteran, and must not rely solely on the length of time that passed between the Veteran's exposure to herbicide agents in service and the onset of his neuropathies. If the October 2017 examiner is no longer employed by VA or is otherwise unable to provide the opinion(s) requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.