Citation Nr: 21032800 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 17-50 369A DATE: May 28, 2021 ORDER Entitlement to service connection for toxic peripheral sensory neuropathy of the bilateral lower extremities is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is remanded. FINDING OF FACT The evidence of records suggests that the Veteran's toxic peripheral sensory neuropathy of the bilateral lower extremities had their onset during service or is the result of service. CONCLUSION OF LAW The criteria for entitlement to service connection for toxic peripheral sensory neuropathy of the bilateral lower extremities have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1970 to July 1972, to include service at Fort McClellan. This claim comes before the Board of Veterans' Appeals (Board) on appeal of an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge on April 5, 2021, with her representative present. A transcript of the hearing has been produced and associated with the claims file for Board review. In short, the Veteran's claims for peripheral neuropathies of the bilateral upper and bilateral lower extremities appear to have been developed on a theory that the Veteran was exposed to herbicides during basic training at Fort McClellan, Alabama. The Board concludes that the claim for service connection for the bilateral lower extremities can be granted in full on alternative grounds separate from Fort McClellan; however, a remand is required to adequately develop the Veteran's claim for the bilateral upper extremities. These reasons will be respectively discussed in further detail below. 1. Entitlement to service connection for toxic peripheral sensory neuropathy of the bilateral lower extremities is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted based on evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for disability that is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). It is not in serious dispute that the Veteran has current diagnoses of peripheral neuropathy of the bilateral lower and bilateral upper extremities. See, e.g.: VA Medical Record by F.A.J. ( Apr. 12, 2019 ). As indicated above, the Veteran and her representative provided extensive testimony and other evidence suggesting that the neuropathy originated from basic training in Fort McClellan, Alabama, and exposure to chemical agents therein. Service personnel records confirm that the Veteran was stationed at Fort McClellan. The Board notes that upon examination for a now-service-connected right sacroiliac strain, the examiner noted that "[a] toxic peripheral severe sensory and motor neuropathy of the lower extremities have been diagnosed and felt to be in service more likely than not." See VA Exam ( Apr. 7, 2015 ) at Page 9, Question No. 20 and Additional Questions Nos. 1-2. Upon addendum, the examiner clarified that "[t]his is a new and separate diagnosis/condition unrelated to the service connected [sacroiliac] strain and yet, is at least as likely as not service related." See id. at Page 11. In addition, A November 2015 opinion from Dr. S.S., a neuromuscular neurologist, opined that the Veteran had neuropathy and myopathy due to abnormal mitochondrial function that is secondary to toxic exposure sustained while on active duty; the provider did not specify which extremity or extremities were impacted by this diagnosis but did detail the Veteran's lower extremity symptoms. These conclusions appear to be based upon the examiner's interview with the Veteran and review of the claims file as was pertaining to her other claims for service connection, as well as due consideration of medical journal articles. There is no contrary negative opinion of record against service connection for the bilateral lower extremities that should be weighed against these positive opinions, and there is also no reason to discount the probative value of these opinions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Ultimately, there is not sufficient basis for the Board to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose); Chisem v. Gober, 10 Vet. App. 526, 528 (1997). Instead, the Board concludes that the evidence of record is at least evenly balanced as to whether the Veteran is entitled to service connection for toxic sensory neuropathy of the bilateral lower extremities. To the extent that there may be remaining reasonable doubt to resolve, the Board resolves it in the Veteran's favor. The claim must be granted. 38 U.S.C. § 5107, 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is remanded. The Board notes the Veteran's testimony and the recently submitted evidence in support of her contention that she was exposed to various chemical agents while stationed at Fort McClellan. Several etiology opinions have been submitted; however, none specifically address the etiology of the Veteran's bilateral upper extremities. The April 2015 VA examiner diagnosed toxic peripheral severe sensory and motor neuropathy of the lower extremities only. Multiple opinions were received from Dr. S.A.S, including those dated in November 2015 and April 2016. The provider diagnosed the Veteran with distal muscle atrophy from axonal and demyelinating neuropathy and proximal muscle weakness due to mitochondrial cytopathy but did not specify which extremity or extremities were impacted. The provider further opined that the Veteran's neuropathy and myopathy due to abnormal mitochondrial function that is secondary to toxic exposure sustained while on active duty at Fort McClellan. In April 2016, the provider noted that the medical literature has shown that mitochondrial myopathy, axonal neuropathy and demyelinating neuropathy can be caused by various chemical agents and that the Veteran was exposed to such chemicals while at Fort McClellan. However, this provider only addressed the Veteran's lower extremities symptoms and did not indicate that the condition also impacted her upper extremities. Here, the Veteran has reported neurological symptoms and has had reported being exposed to various chemical agents during service. Furthermore, the Veteran has submitted various environmental reports detailing the various chemical containments at Fort McClellan. As noted above, the etiology opinions of record did not address the Veteran's upper extremities. The Board notes that the medical evidence of record is not sufficient to adjudicate the claim. Therefore, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of her claimed upper extremity peripheral neuropathy. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are 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 her representative and afford them 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. Forward the Veteran's claims file to a qualified VA examiner. The claims file must be made available to the examiner for review of the case. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. All tests and studies deemed necessary should be conducted. The need for further in-person examination is left to the discretion of the examiner. After reviewing the claims folder and examining the Veteran the examiner should: (A) Confirm all relevant diagnoses applicable to the Veteran's claimed peripheral neuropathy of the bilateral upper extremities. (B) For each such diagnosed condition of the bilateral upper extremities, is it as least as likely as not (50 percent probability or more) that the Veteran's condition is related to an in-service injury, event, or disease, to include exposure to chemicals at Fort McClellan? The examiner should specifically address the opinions of Dr. S.A.S relating the Veteran's neuropathy and myopathy due to abnormal mitochondrial function to toxic exposure sustained while on active duty at Fort McClellan. Ensure that any medical opinion obtained includes a complete rationale for the conclusions reached. Any medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; any medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.