Citation Nr: 21039897
Decision Date: 07/01/21	Archive Date: 07/01/21

DOCKET NO. 11-10 012
DATE: July 1, 2021

REMANDED

Entitlement to service connection for bilateral lower extremity neuropathy, to include as secondary to service-connected disability, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from February 1966 to February 1968 in the United States Army. The claim has been before the Board several times, most recently in April 2021. There has not been substantial compliance with the remand directives and the claim must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998).

Entitlement to service connection for bilateral lower extremity neuropathy is remanded.

The claim must be remanded again because the VA examinations to date are inadequate. The April 2021 VA opinion was not responsive to the questions posed on the prior remand. The opinion did not specifically address the question of aggravation.

Furthermore, the Board finds that the record still does not contain an adequate medical opinion addressing whether the Veteran's bilateral lower extremity neuropathy is etiologically related to his conceded herbicide exposure.  The June 2020 VA medical opinion only addresses the fact that the evidence does not demonstrate entitlement to the herbicide presumption for neuropathy.  However, notwithstanding this opinion, a claimant is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997).

The matters are REMANDED for the following action:

1.  Obtain an addendum opinion from an appropriate clinician on the likely etiology of the Veteran's bilateral lower extremity neuropathy. Copies of all pertinent records must be made available to the examiner for review. The examiner must answer the following: 

(a) Is at least as likely as not that the lower extremity radiculopathy if caused by his conceded in-service herbicide exposure. The basis of a negative opinion cannot not rely solely on the fact that the evidence does not meet the requirements for presumptive service connection. Why or why not? 

(b) If the answer the (a) is no, is it at least as likely as not that the lower extremity neuropathy is aggravated by (defined as any increase in disability) the service-connected TBI. Why or why not? 

A complete rationale must be provided for all opinions given. If an opinion cannot be provided, the examiner must explain why.

2.  Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself.  If not, get an addendum.

 

 

M.E. Larkin

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	P.S. McLeod

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.