Citation Nr: 23023219 Decision Date: 04/20/23 Archive Date: 04/20/23 DOCKET NO. 17-47 567 DATE: April 20, 2023 REMANDED Entitlement to service connection for peripheral neuropathy of the left upper extremity due to exposure to contaminated water at Camp Lejeune is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity due to exposure to contaminated water at Camp Lejeune is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity due to exposure to contaminated water at Camp Lejeune is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity due to exposure to contaminated water at Camp Lejeune is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from May 1974 until his honorable discharge in August 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Regional Office of the Department of Veterans Affairs (VA). In March 2022 and October 2022, the Board remanded the case to the Regional Office for further development. Specifically, the Board directed the Regional Office to obtain new VA examinations. Although the Veteran initially requested a Board hearing in his VA Form 9, he withdrew his request in October 2021 which was confirmed by his representative in their appellate brief. 1. Entitlement to service connection for peripheral neuropathy of the left upper extremity due to exposure to contaminated water at Camp Lejeune. 2. Entitlement to service connection for peripheral neuropathy of the right upper extremity due to exposure to contaminated water at Camp Lejeune. 3. Entitlement to service connection for peripheral neuropathy of the left lower extremity due to exposure to contaminated water at Camp Lejeune. 4. Entitlement to service connection for peripheral neuropathy of the right lower extremity due to exposure to contaminated water at Camp Lejeune. Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. In the prior remand, the Board instructed the Regional Office to obtain "a VA peripheral nerve/neurological conditions examination and opinion." However, only a VA opinion has been associated with the file and there is no evidence that a disability benefits questionnaire was completed. As such, there has not been substantial compliance with the Board's prior remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, the examiner failed to properly address the issues on appeal. The Veteran asserts that his bilateral upper and lower peripheral neuropathy are a result exposure to contaminated water at Camp Lejeune. See September 2015 VA 21-526EZ. This has also been phrased as exposure to herbicide agents. See March 2023 Appellate Brief. The Veteran has had three VA examinations, a general medical examination in September 2010, and peripheral neuropathy examinations in July 2022 and January 2023. He has yet to receive an adequate examination for his peripheral neuropathy. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). First, the Regional Office must obtain a disability benefit questionnaire pertaining to his bilateral peripheral neuropathy in the lower and upper extremities as instructed in the most recent remand and a new VA medical nexus opinion. The Veteran was diagnosed with "peripheral neuropathy, likely Charcot-Marie-Tooth" in 2008, noted as "hereditary neuropathy." See VA Treatment Records. The September 2010 VA examination diagnosed the Veteran with a "history of sensory and motor polyneuropathy involving upper and lower extremity" and carpal tunnel syndrome. The July 2022 VA examination noted the Veteran had a diagnosis of "hereditary polyneuropathy, bilateral upper extremities, bilateral lower extremities." The January 2023 VA examiner then stated that hereditary polyneuropathy was "CMT" or Charcot-Marie-Tooth. This examiner also noted the carpal tunnel syndrome diagnosis. The examiner does not address whether the Veteran's Charcot-Marie-Tooth, hereditary polyneuropathy, existed prior to service and manifested in the noted symptoms in 2007 or if he first acquired the disability in 2007. Congenital and developmental defects are not disabilities, injuries or diseases within the meaning of Agency regulations for disability compensation benefits. As such, the presumption of soundness does not attach to those claims. 38 C.F.R. § 4.9; Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009). However, VA's General Counsel has held that there is a distinction between "diseases" and "defects" for congenital and developmental conditions. Congenital diseases may be recognized as service-connected if the evidence shows aggravation in service. On the contrary, congenital defects are not able to be connected to service. 38 C.F.R. § 3.303(c). In a narrow scope of cases, service connection may be established for congenital defects upon a showing of an additional disease or injury superimposed upon such defect during service. VAOGCPREC 82-90. A "defect" is a hereditary condition that cannot change. O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014)). The January 2023 examiner noted that the Veteran reported that his Charcot-Marie-Tooth, hereditary polyneuropathy, was a "genetic condition." It is unclear from the language of the examiner whether his Charcot-Marie-Tooth, hereditary polyneuropathy, is in fact a "defect" meaning a hereditary condition that cannot change, or a disease. In fact, there is no medical evidence as to whether the condition is congenital or not. Additionally, the prior January 2023 Board remand asked for an opinion regarding whether the Veteran's conditions were aggravated by service. This was not addressed by the examiner. The examiner reported, "The [V]eteran stated on exam that his symptoms started following a gunshot wound to the scrotum, which could have contributed to his symptoms. I cannot offer an opinion on this without resorting to speculation as I do not have access to medical records detailing the trauma that resulted." There is medical evidence in the file regarding the gunshot wound such as an August 2009 radiology report discussing the history of the injury, an April 2009 VA treatment record listing "Sciatic nerve injury secondary to gunshot wound in the left leg," a more recent record states as follows: The bullet went through his scrotum and eventually came out of his left lower back over the quadratus lumborum region. He reports experiencing left hip pain since then and has had dysesthetic pain in the left foot greater than the right foot afterwards. However, he was also diagnosed as having a peripheral neuropathy, and it is unclear how much of his foot pain is from that. See June 2022 VA Treatment Record. He also reported back pain prior to the gunshot wound at this same appointment. A May 2021 x-ray of this hip showed "evidence of prior gunshot injury." The Board finds that the January 2023 examiner's statement regarding the gunshot wound is inadequate. As a result, the claim must be remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination to determine the current nature and etiology of his bilateral peripheral neuropathy of the upper and lower extremities. The appropriate disability benefits questionnaire should be completed, and the entire claims file and a copy of this remand must be made available to the examiner for review. The examiner is asked to: Opine whether the Veteran's bilateral peripheral neuropathy of the upper and lower extremities had its onset in service or was caused by, or otherwise related to, the Veteran's active service, to include exposure to contaminated water at Camp Lejeune. The examiner must address the following: a. What are, if any, the Veteran's peripheral neuropathy diagnoses of the upper and lower extremities? b. If the Veteran has multiple diagnoses, determine the etiology of each diagnosis. c. If the Veteran is diagnosed with Charcot-Marie-Tooth, hereditary polyneuropathy, determine the onset date of the disability and whether the disability is genetic in nature. d. Discuss whether the Veteran's exposure to contaminated water at Camp Lejeune caused his bilateral peripheral neuropathies. Review and discuss the article submitted by the Veteran's representative in the March 2023 Appellate Brief. 2. The Regional Office should ensure that the VA examination is adequate before completing the next instruction. 3. After,?readjudicate?the Veteran's claim. If the claim remains denied, send the Veteran and his representative a supplemental statement of the case (SSOC), and allow them an appropriate time to respond before returning the issue to the Board for further appellate consideration. Martin Mitchell Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.