Citation Nr: 21042763 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-38 956 DATE: July 13, 2021 REMANDED Entitlement to service connection for peripheral neuropathy of the upper extremities with muscle spasms, to include as due to in-service exposure to herbicides or as secondary to the service-connected gunshot wound to abdomen, is remanded. Entitlement to service connection for peripheral neuropathy of the lower extremities with muscle spasms, to include as due to in-service exposure to herbicides or as secondary to the service-connected gunshot wound to abdomen, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1967 to July 1970, including service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims for further development in April 2019 and February 2020. Pursuant to the February 2020 Board remand, addendum VA opinions were obtained but the examiner failed to comply with remand directives. In February 2020, the examiner opined that it was less likely than not that the Veteran's claimed disability incurred in or was caused by an in-service injury, event, or illness. As rationale, the examiner stated, "review of the [service treatment records] and medical record shows no evidence of the diagnosis, treatment or complaint of neuropathy while on active duty or within one year of separation." With regards to secondary service connection, the examiner also gave a negative nexus opinion, stating "review of the [service treatment records] and medical record shows no evidence of the diagnosis, treatment or complaint of neuropathy while on active duty or within one year of separation." The examiner also gave a negative opinion regarding whether the Veteran's claimed disability was at least as likely as not aggravated beyond its natural progression by a service-connected condition and provided the exact same rationale. In August 2020, the same examiner again failed to comply with the remand directives in rendering his opinion. The examiner noted that the service treatment records (STRs), medical records, and lay statements were reviewed. However, the examiner failed to address these pieces of evidence, as well as the medical journal information submitted by the Veteran's representative. The Board finds that the 2020 opinions lack adequate rationale and contain identical short phrases. Since the Board's remand instructions have not been complied with, this case must be remanded again. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The matters are REMANDED for the following action: Obtain an addendum opinion from an examiner other than the October 2019 and February 2020 VA examiners addressing the etiology of the Veteran's bilateral upper and lower extremity peripheral neuropathy. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed bilateral upper and lower extremity peripheral neuropathy, as well as chronic inflammatory demyelinating polyneuritis (see October 2019 VA examination report): (a) had their onset in or are otherwise related to service, to include as a result of conceded exposure to herbicide agents therein; (b) manifest to a compensable degree within one year of the Veteran's last in-service exposure to herbicide agents, since December 1968; (c) are proximately due to his service-connected gunshot wound to the abdomen; or (d) have been aggravated (worsened beyond natural progression) by his service-connected gunshot wound to the abdomen. Please render separate opinions for each condition. In addressing these questions, the examiner must discuss the Veteran's lay statements regarding the onset of his bilateral upper and lower peripheral neuropathy (see October 2015 VA Form 9), as well as the medical article regarding chronic inflammatory demyelinating polyneuritis cited by the representative (see January 2020 Appellate Brief). The examiner should also discuss the December 1968 and January 1969 STRs related to the in-service gunshot wound, which state that the Veteran had persistent right low back pain since the time of his injury, and indicate whether this is related to the Veteran's upper and lower peripheral neuropathy. The examiner is also asked to discuss the April 2014 private treatment records from St. Luke's, where the Veteran was treated for low back pain, and explain whether this relates to the Veteran's in-service back complaints. Failure to consider the Veteran's lay statements will result in an inadequate opinion. Also, please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion, as well as the fact that presumptive service connection may not be available for the condition. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a basis for that conclusion. S. S. MAHONEY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hetman 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.