Citation Nr: 23017754 Decision Date: 03/21/23 Archive Date: 03/21/23 DOCKET NO. 20-20 751 DATE: March 21, 2023 REMANDED Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1965 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In October 2020, the Board remanded the appeal for further development. Thereafter, in June 2021, the Board again remanded the appeal finding that there had not been substantial compliance with the previous Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for appellate review. The Veteran has not indicated whether he wanted a hearing on his substantive appeal. In January 2023, the Board notified the Veteran that hearings were optional and indicated that if he did not respond to the notice within 30 days, the Board would assume he did not want a hearing. As he did not respond, the Board will proceed in addressing his appeal. Should he wish to request a hearing following the Board's remand, he is encouraged to consult with his representative. The Board regrets the delay associated with this remand. However, the Board finds that there again has not been substantial compliance with the previous remand directives. See Stegall, 11 Vet. App. at 270-271. In ordering another examination in this case, the June 2021 Board remand specifically directed that it "must include an EMG nerve conduction study." Nevertheless, no such study has been completed. As a matter of law, a remand by the Board confers upon the Veteran the right to compliance with the Board's remand order. See Stegall, 11 Vet. App. at 270-271. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Id. As a matter of background, the January 2021 VA examiner determined that a diagnosis of the Veteran's condition and an opinion as to the etiology of the Veteran's condition could not be made without an EMG nerve conduction study. See January 2021 VA Examination. Specifically, the examiner stated the following: There is no documentation that an EMG nerve conduction study or neurology consult has been performed. Electrodiagnostic testing is helpful to distinguish if the problem is multifocal neuropathy or polyneuropathy, motor neuronopathy or sensory neuronopathy, demyelination or axonal loss, and fiber type involvement. These results can assist with determination of the underlying etiology and/or pathophysiology. (Emphasis added). Therefore, an EMG nerve conduction study is recommended to gain additional information for causality determination. The same examiner then stated in the July 2021 VA examination under rationale: "IMO IS PENDING EMG/NERVE CONDUCTION STUDY RESULTS." Then, the same examiner contrarily stated in a November 2022 VA examination report, "Although the 06/08/2021 Remand Letter states 'The examination must include an EMG nerve conduction study.' However, an EMG/NCS was not authorized and therefore was not completed in conjunction with this exam." The Board emphasizes that requiring VA authorization for a test based on 'recent invasive guidance' as noted by the AOJ personnel in requesting an addendum, is completely irrelevant to the medical inquiry presented in this case, and the examiner herself specifically determined that this testing was necessary to address the etiology of the Veteran's neuropathy. Yet she provides no explanation as to how she is not able to make these determinations without an EMG nerve conduction study that she expressly stated was needed in the 2021 examinations. If the test is needed, authorization must be obtained for the same. Therefore, this opinion is inadequate as it fails to comply with the prior remand instructions and offers contradictory rationales from the same examiner. See Jones v. Shinseki, 23 Vet. App. 382, 392 (2010) (holding that the Board clearly erred when it relied on a medical opinion that was internally inconsistent); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that in order for a medical opinion to be given weight, it must be based on sufficient facts or data, the product of reliable principles and methods, and the result of principles and methods reliably applied to the facts). Additionally, while determining that the Veteran's peripheral neuropathy is not related to his reported in-service neurological symptoms endorsed by the examiner, she has yet to address the Veteran's main contention that his peripheral neuropathy was caused by his exposure to herbicide agents in service, which also requires remand. Consequently, the Board finds that an additional VA examination with a different VA examiner is needed to comply with previous remand directives. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination with an examiner other than the January 2021/July 2022/November 2022 VA examiner, preferably a physician, to determine the etiology of the Veteran's peripheral neuropathy of the upper and lower extremities. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Is an EMG study needed in this case to determine the etiology of the Veteran's peripheral neuropathy of the upper and lower extremities? (1.) If not, please explain your rationale in light of the January 2021 VA examiner's statement that "Electrodiagnostic testing is helpful to distinguish if the problem is multifocal neuropathy or polyneuropathy, motor neuronopathy or sensory neuronopathy, demyelination or axonal loss, and fiber type involvement. These results can assist with determination of the underlying etiology and/or pathophysiology. (Emphasis added). Therefore, an EMG nerve conduction study is recommended to gain additional information for causality determination" (2.) If so, please conduct the same. (b.) After conducting an EMG study or indicating why one is not necessary in this case, please opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's peripheral neuropathy had its onset in service or is otherwise etiologically related to his active service, to include as a result of conceded exposure to herbicide agents (Agent Orange)? (c.) Opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's peripheral neuropathy onset within one year of discharge from service (by July 1969)? The examiner should discuss the Veteran's statements, which the examiner should accept as credible for purposes of these opinions, that he has experienced symptoms of "tingling and other sensations in my hands and feet ever since I got out of service and it has gotten worse in the last few years" and determine whether a nexus between the Veteran's peripheral neuropathy and service is "medically plausible" based on the same. See April 2019 Notice of Disagreement; April 2020 VA Form 9. If this statement is inconsistent with examination findings, the examiner should explicitly so state. In forming his or her opinion, the examiner's attention is directed to the November 2018 VA treatment record noting "Today vet reports chronic tingling & numbness of both hands and feet x yrs, worse lately" and November 2019 VA treatment record noting Veteran had "numbness in feet, on and off x years but getting worse. Stating tingling in hands still present." The examiner should not rely on a lack of medical records as the sole basis of their rationale unless it can be explained: (a) why the lack of available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the lack of medical records is medically significant. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jones, Amber J. 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.