Citation Nr: 23020176 Decision Date: 03/31/23 Archive Date: 03/31/23 DOCKET NO. 19-34 009 DATE: March 31, 2023 REMANDED Entitlement to service connection for peripheral neuropathy, left lower extremity, is remanded. Entitlement to service connection for peripheral neuropathy, right lower extremity, is remanded. REASONS FOR REMAND The Veteran had active service from February 1964 to January 1967, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision of an AOJ of the U.S. Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge on February 15, 2022. A transcript of the hearing has been associated with the record. The Board previously considered this appeal in July 2022. At that time, the Board stated: [T]he Board finds the Veteran has satisfied the requirements of McLendon v. Nicholson, 20 Vet. App. 79 (2006) such that VA is required to examine him for this claim. However, on the same day he testified, he submitted a statement noting he "does not wish to attend any VA examinations in conjunction with his appeal." Presented with this, the Board will order a medical opinion without examination. Therefore, in Remand Directive #1, the Board instructed the AOJ: Obtain a medical opinion based on the evidence of record regarding the nature and etiology of the Veteran's peripheral neuropathy of the bilateral lower extremities. On July 15, 2022, the AOJ, in an "Exam Scheduling Request," notified VA-contractor QTC: The Veteran is claiming service connection for service connection for peripheral neuropathy, left lower extremity. Please examine the Veteran for a chronic disability related to his or her claimed condition and indicate the current level of severity. The Veteran is claiming service connection for service connection for peripheral neuropathy, right lower extremity. Please examine the Veteran for a chronic disability related to his or her claimed condition and indicate the current level of severity. On August 3, 2022, in an "Exam Scheduling Request Clarification Response," the following exchange occurred between QTC and the AOJ: QTC: As this is the first time QTC is seeing this veteran is an exam required or is there sufficient information in the medical records for the provider to accurately answer the MO question(s)? It also states "Please examine the Veteran for a chronic disability related to his or her claimed condition and indicate the current level of severity." Given that please provide the appropriate DBQ for examination. AOJ: DBQ added. QTC, in response, scheduled the Veteran for an examination. On August 12, 2022, QTC, in an "Exam Scheduling Request Contention Cancellation," notified the AOJ that the examination was "cancelled at claimant's request." On September 16, 2022, the AOJ, in an "Exam Scheduling Request," changed contractors. It notified VA-contractor LHI: The Veteran is claiming service connection for service connection for peripheral neuropathy, left lower extremity. Please examine the Veteran for a chronic disability related to his or her claimed condition and indicate the current level of severity. The Veteran is claiming service connection for service connection for peripheral neuropathy, right lower extremity. Please examine the Veteran for a chronic disability related to his or her claimed condition and indicate the current level of severity. On October 28, 2022, in an "Exam Scheduling Request Clarification Response," the following exchange occurred between LHI and the AOJ: LHI: No previous exam DBQ was located for contentions * peripheral neuropathy, left lower extremity, service connection for peripheral neuropathy, right lower extremity, * in order for Vendor to proceed the *Peripheral Nerves* DBQ will need to be added. If the DBQ is unable to be added please remove the contention and submit an edited request. AOJ: Will add needed DBQs. On November 30, 2022, in an "Exam Scheduling Request Clarification Response," the following exchange occurred between LHI and the AOJ: LHI: Thank you for the previous response, however the order request does not reflect the changes needed to continue processing the order. No previous exam DBQ was located for contentions peripheral neuropathy, left lower extremity, service connection for peripheral neuropathy, right lower extremity, in order for Vendor to proceed the Peripheral Nerves DBQ will need to be added. If the DBQ is unable to be added please remove the contention and submit an edited request. AOJ: Peripheral Nerves DBQs have been added to the exam request. LHI, in response, scheduled the Veteran for an examination. On December 16, 2022, LHI, in an "Exam Scheduling Request Contention Cancellation," notified the AOJ that the examination was "cancelled at claimant's request." On December 19, 2022, the AOJ notified the Veteran: We have requested an examination for you through LHI Services. However, our follow up with LHI Services has indicated that you refused the examination request. Please respond back to us stating whether or not you are willing to attend exams. We request a response as soon as possible in order to have your examination rescheduled. Thank you. The Veteran did not respond. The Board has recounted the events since it remanded the appeal to demonstrate that the AOJ did not comply with Directive #1. Specifically, the AOJ arranged with two VA contractors - QTC and LHI - to examine the Veteran for this appeal despite the Board expressly stating that the Veteran did not want to be examined. Therefore, remand is warranted for the AOJ to attempt to obtain a medical opinion without examination. The matters are REMANDED for the following action: 1. Obtain a medical opinion based ONLY on the evidence of record regarding the nature and etiology of the Veteran's peripheral neuropathy of the bilateral lower extremities. Do NOT schedule the Veteran for an examination. The clinician must review the claims file, to include this Remand, and then opine as to the following: a) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's peripheral neuropathy, left lower extremity, began during, within a year of discharge, or was otherwise caused by, military service, to include exposure to herbicide agents or the excision of a pilonidal cyst? Why or why not? b) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's peripheral neuropathy, right lower extremity, began during, within a year of discharge, or was otherwise caused by, military service, to include exposure to herbicide agents or excision of a pilonidal cyst? Why or why not? (Continued on the next page) ? In answering questions (a) and (b), the clinician should consider all the evidence and specifically address the VA and private treatment records received in 1982, which discuss, in part, a November 1981 diagnosis of mild polyneuropathy by a VA medical professional and private treatment references to "pins and needles" symptoms resulting from the excision of a pilonidal cyst in September 1973. In addition, the medical professional should clearly indicate if the Veteran has been diagnosed with early onset peripheral neuropathy. A complete rationale must be provided. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sopko, Michael 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.