Citation Nr: 22016123 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-54 784 DATE: March 21, 2022 REMANDED Entitlement to service connection for right-upper-extremity peripheral neuropathy, to include as a result of exposure to an herbicide agent, is remanded. Entitlement to service connection for left-upper-extremity peripheral neuropathy, to include as a result of exposure to an herbicide agent, is remanded. Entitlement to service connection for right-lower-extremity peripheral neuropathy, to include as a result of exposure to an herbicide agent, is remanded. Entitlement to service connection for left-lower-extremity peripheral neuropathy, to include as a result of exposure to an herbicide agent, is remanded. Entitlement to an initial disability evaluation in excess of 30 percent for post-traumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1967 to May 1969, during which he was deployed to the Republic of Vietnam. Although not shown in any military personnel records, the Veteran has stated in his December 2016 Statement in Support of Claim he was awarded the Combat Infantry Badge and Bronze Star Medal. 1. Entitlement to service connection for right-upper-extremity peripheral neuropathy, to include as a result of exposure to an herbicide agent. 2. Entitlement to service connection for left-upper-extremity peripheral neuropathy, to include as a result of exposure to an herbicide agent. 3. Entitlement to service connection for right-lower-extremity peripheral neuropathy, to include as a result of exposure to an herbicide agent. 4. Entitlement to service connection for left-lower-extremity peripheral neuropathy, to include as a result of exposure to an herbicide agent. Early-onset peripheral neuropathy is included among those diseases which may be presumptively service connected based on exposure to an herbicide agent under 38 C.F.R. § 3.309 (e). The diseases shall have become manifest to a degree of 10 percent disabling or more at any time after service, with the exception of early-onset peripheral neuropathy, which must become manifest to a degree of 10 percent or more within a year after the last date on which a Veteran was exposed to an herbicide agent during active military, naval or air service. 38 C.F.R. § 3.307 (a)(6)(ii). Although the March 2017 VA examiner, in opining negatively for service connection for the neuropathies, discussed other clinical causes of peripheral neuropathy, as well as stating she had reviewed the article from the Neuropathy Journal, submitted by the Veteran's private treatment physician, Dr. W.J.R., the rationale for her opinion is based on the failure of peripheral neuropathy to manifest within the regulatory threshold requirement of 1-year after active service, thereby restricting the scope of this opinion only to "presumptive" service connection due to exposure. However, the regulations also provide service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). This is to say, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). The Neuropathy Journal article reviewed by the March 2017 examiner, but not discussed, disputes that there is only a connection between early-onset peripheral neuropathy (manifesting to 10 percent disabling) and herbicide exposure. The Veteran does not contend the neuropathies manifested during service or within 1 year of separation from active service. Moreover, the Board is well aware the March 2017 examiner stated she reviewed the Neuropathy Journal article, but, once again, she did not discuss it. She briefly noted possible clinical causes of neuropathy manifesting later in life. However, as already stated, the negative opinion for service connection is based on the requirement of 38 C.F.R. § 3.307 (a)(6)(ii) and does not address otherwise the principles of direct service connection. As such, although her opinion is adequate for VA adjudication purposes regarding presumptive service connection due to exposure, it is not for direct service connection, irrespective of regulatory requirements for presumed service connection due to exposure. Additionally, while the examiner noted alcohol and tobacco use, there was no consideration as to whether that usage was due to service-connected PTSD and therefore secondary to that service connected disability. Service connection for a disease or disability caused by alcohol or tobacco abuse is permissible in the circumstance where alcoholism was caused by service connected PTSD, and the alcoholism caused or aggravated another disability. See 38 C.F.R. § 3.310(a); El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (PTSD could have aggravated alcoholism where the alcoholism led to hepatic cirrhosis and death). Conflicting evidence as to service connection remains in the record. For these reasons, a new opinion is required. The matter is remanded. 5. Entitlement to an initial disability evaluation in excess of 30 percent for PTSD. The Veteran was afforded a VA examination for PTSD, dated March 2017, but associated with the file in April 2017. Based on the findings of that examination, the Agency of Original Jurisdiction (AOJ) granted service connection at a 30 percent rating. The Veteran subsequently submitted a May 2017 private Disability Benefits Questionnaire (DBQ) for PTSD, completed by Dr. E.M.T., and associated with the file in June 2017. Dr. E.M.T. found the Veteran's occupational and social impairment to be at a 70 percent rating. As the examinations were conducted approximately only 2 months apart, their findings stand in the record as conflicting evidence, which has yet to be resolved. For that purpose, remand for a new VA examination adequate for VA rating purposes is necessary. The matters are REMANDED for the following action: 1. Contact the Veteran and his representative for information pertaining to any current treatment for peripheral neuropathy and for PTSD at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, arrange for a review of the claims file by an examiner. Simultaneous to the above directive, further arrange for an examination of the Veteran by an examiner to evaluate a mental health disability. The complete electronic claims file must be made available to the examiners in conjunction with their review and examination. The examiners should detail all findings. The examiner for peripheral neuropathy, after review of the entire file, is specifically instructed to review and consider the Neuropathy Journal article found in the record at March 3, 2017 and at October 26, 2021. After the above review and consideration, the examiner is requested to render the following opinions. (a) Whether the neuropathies claimed by the Veteran were incurred during active service or are directly caused by an event, injury or illness occurring in active service, to include exposure to an herbicide agent. (b) Whether the conflicting evidence between the March 2017 VA examiner's negative opinion and the Neuropathy Journal article's discussion of late-onset neuropathy and the articles it cites and discusses can be reconciled by the current examiner's own analysis and opinion. (c) Note the April 2017 VA examination report which strongly suggests post-service alcohol abuse is connected to service-connected PTSD. Also note the comments of the March 2017 VA examination report regarding tobacco usage. State: a. Whether the Veteran's currently diagnosed peripheral neuropathy is caused or aggravated by his service-connected PTSD. i. If aggravated, the examiner should clarify whether there is medical evidence created prior to aggravation or at any time between the aggravation and the current level of disability that shows a baseline of the disability prior to aggravation. The examiner is advised a negative opinion cannot be based solely on the fact of the Veteran's neuropathies not being early-onset neuropathies for the purposes of presumptive service connection, due to exposure to an herbicide agent. The opinion requested is for direct and secondary service connection, irrespective of any requirements pertaining to the period in which manifestation is required under the regulation for presumptive service connection. The opinions rendered by the examiner must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is requested to comment on any relevant opinions found in the record. The examiner is further requested to discuss the Veteran's testimony in the October 2021 Board hearing and his statement accompanying the June 2017 Notice of Disagreement, as well as his reports to treatment providers and examiners as they appear throughout the record. The Board urges the examiner to note that opinions rendered without discussing such lay evidence as it pertains to the above claims will be deemed insufficient for VA adjudication purposes. 3. The examiner for PTSD is requested to provide findings and diagnoses as to the nature, extent and current severity of the Veteran's service-connected PTSD. The examiner is further requested to provide an opinion addressing the following: Whether the conflicting evidence between the findings for occupational and social impairment March 2017 examination for PTSD (associated with the file in April 2017) and the findings for occupational and social impairment in the May 2017 private DBQ for PTSD (Dr. E.M.T.) (associated with the file in June 2017) can be reconciled by the examiner's own findings for this requested examination. The opinion rendered by the examiner must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is requested to comment on any relevant opinions found in the record. The examiner is further requested to discuss the Veteran's testimony in the October 2021 Board hearing and the statement accompanying his December 2018 Veterans Appeals Form 9, as well as his reports to treatment providers and examiners as they appear throughout the record. The Board urges the examiner to note that opinions rendered without discussing such lay evidence as it pertains to the above claim will be deemed insufficient for VA adjudication purposes. 4. After the above development and any other development indicated is completed, adjudicate the claims. If the benefit sought is not granted in full, send the Veteran and his representative a Supplemental Statement of the Case and afford them a reasonable opportunity to respond before the record is returned to the Board. EMILY TAMLYN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.