Citation Nr: 21032535 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-44 403 DATE: May 27, 2021 REMANDED Entitlement to service connection for basal skin cell carcinoma and melanoma, claimed as skin cancer, to include as due to herbicide exposure is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to herbicide exposure is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to herbicide exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in November 2018. 1. Entitlement to service connection for basal skin cell carcinoma and melanoma, claimed as skin cancer, to include as due to herbicide exposure is remanded. Pursuant to the November 2018 Board remand, a VA examination was obtained for the Veteran's skin cancer claim. At the February 2020 VA examination, the examiner noted that the Veteran did not have a current skin condition diagnosis. The examiner noted that that the melanoma on the Veteran's back in May 2019 was removed and that he had basal cell removed on his temple about 5 years ago. Therefore, the Veteran did not have skin cancer now as his basal cell cancer and melanoma had resolved. In a separate February 2020 VA opinion, the examiner opined that basal cell carcinoma was not due to herbicide exposure, but rather due to sun exposure. Therefore, it was less likely incurred in or caused by service. The Board finds this rationale inadequate as the examiner does not explain why the Veteran's skin cancers could not be due to herbicide exposure. The Board acknowledges that skin cancer is not a presumptive condition listed under 38 C.F.R. § 3.309 (e). However, service connection can still be warranted on a direct basis. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). Additionally, the Board notes that the examiner did not find any current skin cancer condition; however, the Board also notes that the Veteran has submitted additional medical evidence of a new malignant melanoma on his left tibia in April 2021. Therefore, on remand, an additional VA opinion should be obtained to determine whether the Veteran's skin cancer conditions are directly related to herbicide exposure. 2. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to herbicide exposure and entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to herbicide exposure is remanded. Pursuant to the November 2018 Board remand, a VA examination was obtained for the Veteran's peripheral neuropathy claims. At the February 2020 VA examination, the examiner noted diagnoses of peripheral sensorimotor polyneuropathy. The examiner stated that the Veteran developed numbness in feet in 2009. The examiner said that the Veteran had extensive workup with some providers opining that the Veteran's neuropathy was due to pre-diabetes and one provider not knowing the etiology and therefore saying it was due to Agent Orange. In a separate February 2020 VA opinion, the examiner opined that the Veteran's neuropathy did not present until 2009, which was over 39 years after separating from service. "As per VA guidelines, a nervous system condition that causes numbness, tingling, and motor weakness," under VA's rating regulations, must be at least 10 percent disabling within one year of herbicide exposure for presumptive service connection. The examiner stated that this was not the case for the Veteran. Furthermore, the Veteran's condition was not disabling to his current lifestyle at this time. The Veteran was not on medications for the neuropathy. He had not had any injuries or falls secondary to the condition. The examiner acknowledged that the Veteran's physician in Boca Neurology opened that his neuropathy was due to his Agent Orange exposure, but in the examiner's opinion, the neuropathy was more likely than not due to his pre-diabetic metabolic state. The examiner then referenced to a supporting journal article on the issue. Therefore, the examiner concluded that it was less likely that the Veteran's peripheral neuropathy was incurred in service or due to in-service herbicide exposure. In a March 2020 private treatment record, the Veteran's private physician determined that the Veteran's neuropathy was not consistent with diabetic neuropathy. The physician said that the Veteran had peripheral sensory polyneuropathy with loss of reflexes and significant sensory deficits bilaterally in lower extremities with mild gait ataxia and a mildly positive Romberg test. There were no signs of upper motor neuron (brain or spinal cord) involvement. Hemoglobin A-1 C and glucose levels had been borderline, not diagnostic of diabetes for 11 years. The physician noted that at the time of the initial EMG testing in June 2010, there was significant peripheral polyneuropathy, sensorimotor, demyelinating and axonal moderately severe. This indicated that the Veteran already had longstanding neuropathy at the time when he initially became aware of the symptoms of numbness. Additional EMG testing did not show any significant progression, as would be expected with diabetic neuropathy. The physician stated that regarding the records reviewed, the VA visit with Dr. B. was inconsistent with all other recorded examinations by independent neurologist as well as the neurological exam in his office, regarding reflexes. Therefore, based upon the lack of an appropriate neurological examination, Dr. B.'s opinion should be excluded from consideration. The physician concluded that because the neuropathy had been present over 11 years without a clinical or chemical diagnosis of diabetes or B12 deficiency, those conditions were less likely etiologies. The physician said that neuropathy could be latent for a period of decades. Therefore, based upon the Veteran's presumed exposure to the Agent Orange during service in Vietnam, the physician opined that it was as likely as not that his peripheral polyneuropathy was causally related to exposure to the herbicide, Agent Orange. Based on this private opinion, an additional VA opinion was obtained. In a November 2020 VA opinion, the examiner stated that given the lack of objective evidence for the pre-diabetes, the neuropathy was of unknown origin. The Veteran's neurologist also agreed it was of unknown etiology; he had resorted to mere speculation to say it was due to Agent Orange exposure, but perhaps he was unaware of the VA guidelines for establishing a nexus. The examiner said that under VA guidelines, a nervous system condition that causes numbness, tingling, and motor weakness must be at least 10 percent disabling within one year of herbicide exposure. The examiner said this was simply not the case for the Veteran. Therefore, the nexus between his neuropathy and Agent Orange exposure simply could not be made. The Veteran's neuropathy did not present until 2009, which was over 39 years after separation from service. Therefore, it was less likely than not that the Veteran's neuropathy was incurred in service, due to service, or due to Agent Orange exposure while in service. The Board finds overall that these opinions are conflicting, and a clarifying opinion is needed prior to adjudication. The Board finds the February 2020 VA examiner's opinion to be inadequate because the examiner inaccurately associated the Veteran's bilateral lower extremity neuropathy with his pre-diabetes condition which has been disputed by the March 2020 private physician and the November 2020 VA examiner. Further, the Board finds the March 2020 private physician's opinion to have less probative value as there was no review of the service treatment records. Finally, the Board finds the November 2020 VA examiner's opinion internally inconsistent because he determined that the etiology was unknown but then provided an opinion that the neuropathy was not related to service or herbicide exposure. The examiner also seems to have based this latter opinion on the lack of failure to meet the criteria needed for presumptive service connection. As stated above, direct service connection may still be warranted for non-presumptive disabilities. See Combee. Regarding the opinion that the etiology is unknown, this is inadequate because the examiner did not provide a rationale as to why he could not provide an opinion without resorting to mere speculation, or provide any information needed to make an opinion if possible. Therefore, based on the conflicting opinions on etiology as well as internal inaccuracies, an additional VA opinion is needed to determine the etiology of the Veteran's bilateral lower extremity peripheral neuropathy. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, obtain a supplemental opinion from an appropriate medical professional ("clinician") to determine the etiology of the Veteran's skin cancer condition. The claims file and a copy of this remand must be made available for review. Following a review of the pertinent evidence, the clinician must determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's skin cancer conditions, to include basal cell carcinoma and melanoma, are related to service, to include the Veteran's presumed herbicide exposure. A clear rationale must be provided for all opinions expressed. The clinician must discuss the new diagnosis of malignant melanoma on the left tibia, as well as provide an adequate rationale if finding that the Veteran's skin cancers are not due to herbicide exposure. The clinician is advised that the fact that skin cancer is not among the presumptive conditions listed under 38 C.F.R. § 3.309(e) is not dispositive, and will not be considered an adequate rationale. If the clinician is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. After associating all records responsive with Remand directive #1 with the claims file, obtain a supplemental opinion from an appropriate medical professional ("clinician") to determine the etiology of the Veteran's bilateral lower extremity peripheral neuropathy. The claims file and a copy of this remand must be made available for review. Following a review of the pertinent evidence, the clinician must state an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral lower extremity peripheral neuropathy is related to service, to include his presumed herbicide exposure. A clear rationale must be provided for all opinions expressed. The clinician must consider and discuss the conflicting opinions, including the April 2015 and March 2020 private opinions, as well as the February 2020 and November 2020 VA opinions. The clinician is advised that the fact that peripheral neuropathy is not among the presumptive conditions listed under 38 C.F.R. § 3.309(e) is not dispositive, and will not be considered an adequate rationale. If the clinician is unable to provide an opinion without resorting to mere speculation, then the clinician must state this and provide any information needed to make an opinion, if possible. 4. After completing the above, and conducting any further development deemed necessary in light of the expanded record, readjudicate the claims on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. A. SOLOMON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saudiee Brown 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.