Citation Nr: 21042458 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-61 647 DATE: July 13, 2021 REMANDED Entitlement to service connection for lower left extremity peripheral neuropathy, including as due to herbicide agent exposure, is remanded. Entitlement to service connection for lower right extremity peripheral neuropathy, including as due to herbicide agent exposure, is remanded. Entitlement to service connection for Parkinson's disease, claimed as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1969 to February 1971, including verified service in the Republic of Vietnam from June 1969 to June 1970. These matters were last before the Board in September 2019, at which time they were remanded to afford the Veteran VA examinations to determine the etiology of the conditions. Specifically, the examiner was instructed to opine as to whether the conditions were related to presumed exposure to herbicide agents during service. The Veteran was afforded a VA examination in February 2020. As to the Veteran's claimed Parkinson's disease, the examiner concluded that the Veteran did not have a diagnosis of such, but instead determined that the Veteran had a diagnosis of essential tremors. The examiner further opined that as the Veteran had not been diagnosed with Parkinson's disease by a neurologist, it was less likely than not that the Veteran's essential tremors were related to herbicide exposure. Regarding the Veteran's bilateral lower extremity peripheral neuropathy, while the examiner confirmed the diagnosis, it was noted that the Veteran had not been diagnosed with Type II diabetes mellitus. The examiner concluded that as the Veteran's neuropathy was not secondary to diabetes, that the condition also was not related to herbicide exposure. In this case, the February 2020 medical opinions are inadequate for adjudicative purposes, as the examiner's rationale is based solely on the fact that the Veteran's essential tremors and peripheral neuropathy are not presumptive conditions under 38 C.F.R. § 3.309(e). Despite the presumptive regulations, the Veteran may still establish service connection based on exposure to herbicides with proof of actual, direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, remand is necessary obtain adequate medical opinions. Additionally, the February 2020 examination report indicates that the Veteran reported receiving treatment for his conditions from a private medical provider in Richland, MI, every 6 months. However, the treatment records have not been obtained. On remand, any necessary actions must be taken to obtain the outstanding treatment records. Finally, the examiner indicated that the Veteran refused to undergo physical examination at the time of the February 2020 medical opinion. Additionally, the examiner reported that the Veteran stated that he "is happy with his current rating and does not feel he needs anything further". While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with the VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The failure to cooperate, including during a VA examination, subjects a veteran to the risk of an adverse adjudication based on an incomplete and underdeveloped record. Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). Additionally, the Veteran is reminded that if he wishes to withdraw the claims on appeal, he may do so in writing at any time. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's claims folder any outstanding VA treatment records. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment records related to his claimed tremors and bilateral lower extremity conditions. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Forward the Veteran's claims file to an appropriate VA examiner for an addendum opinion addressing the current nature and likely etiology of the Veteran's diagnosed essential tremors and bilateral lower extremity peripheral neuropathy. The Veteran's claims file and copies of all pertinent records should be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for an appropriate examination. Based on the examination, if deemed necessary, and review of the relevant evidence, the examiner should offer an opinion on the following questions: a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed essential tremors are related to presumed exposure to herbicide agents during active duty service in Vietnam? b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed bilateral lower extremity peripheral neuropathy is related to presumed exposure to herbicide agents during active duty service in Vietnam? The examiner is advised that service connection can be established due to herbicide exposure by direct proof of causation, and that it is insufficient to conclude that there is no direct causation simply because the Veteran's conditions are not on the list of diseases and conditions that are presumptively associated with exposure to herbicide agents. The examiner is also advised that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. J. Komperda Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.