Citation Nr: 23044546 Decision Date: 08/10/23 Archive Date: 08/10/23 DOCKET NO. 18-40 994 DATE: August 10, 2023 REMANDED Entitlement to service connection for right upper extremity peripheral neuropathy, to include polyneuropathy and/or ulnar neuropathy, is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy, to include polyneuropathy and/or ulnar neuropathy, is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy, to include polyneuropathy, is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, to include polyneuropathy, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1969 to April 1972. These matters return the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2022, the Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge. A subsequent February 2022 Board decision granted entitlement to service connection for the Veteran's Peyronie's disease and remanded the above neuropathy claims for further development, including a VA examination on the etiology of the Veteran's peripheral nerve conditions. In November 2022, the Board found its remanded ordered VA examination inadequate and remanded for an addendum opinion, which was completed by the same examiner in March 2023. The Board regrets additional delay, but finds a remand is again warranted to provide the Veteran adequate opinions on the etiology of his peripheral nerve conditions. 1. Entitlement to service connection for right upper extremity peripheral neuropathy, to include polyneuropathy and ulnar neuropathy, is remanded. 2. Entitlement to service connection for left upper extremity peripheral neuropathy, to include polyneuropathy and ulnar neuropathy, is remanded. 3. Entitlement to service connection for right lower extremity peripheral neuropathy, to include polyneuropathy, is remanded. 4. Entitlement to service connection for left lower extremity peripheral neuropathy, to include polyneuropathy, is remanded. At the outset, the Board notes VA's duty to assist includes obtaining outstanding VA treatment records. 38 C.F.R. § 3.159 (c). Here, the March 2023 VA examiner cites to an October 2020 EMG report that is not currently in the electronic claims file. Notably, VA treatment records dated from 2022 to 2023 are the only VA treatment records in the file since the June 2019 statement of the case. Accordingly, a remand is warranted for the above claims to obtain outstanding VA treatment records, to include the October 2020 EMG report referred to by the March 2023 examiner. Moreover, the Board finds the March 2023 examiner's addendum opinions inadequate. Towards the Veteran's right upper extremity peripheral nerve condition, the examiner simply found one did not exist, based on the cited by not included in the record October 2020 EMG report. However, the same examiner noted the Veteran had current bilateral upper extremity peripheral nerve diagnoses in the prior April 2022 VA examination report. VA medical records also support a diagnoses of polyneuropathy and ulnar neuropathy affecting the Veteran's right upper extremity. See December 2017 CAPRI records; see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). Given the prior diagnosis and diagnoses including in the Veteran's VA treatment records, it was inappropriate for the examiner to conclude the Veteran's right upper extremity nerve condition was not due to service because one had not been diagnosed. Id.; Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based upon an inaccurate factual premise has no probative value."). Towards the Veteran's left upper extremity peripheral nerve condition, the examiner noted the October 2020 EMG report showed a diagnosis of ulnar neuropathy, which is most often over-use related, and thus concluded the Veteran's left upper extremity ulnar neuropathy is less likely than not due to service. Notwithstanding the conclusory nature of the examiner's opinion, it did not address the diagnosis of polyneuropathy in the Veteran's left upper extremity. See December 2017 CAPRI record (showing 2010 EMG evidence of sensory polyneuropathy with superimposed severe ulnar neuropathy in the Veteran's left upper extremity); see also April 2022 VA Peripheral Nerve Examination Report (showing diagnoses of bilateral upper extremity peripheral neuropathies). Towards the Veteran's lower extremity peripheral nerve conditions, the examiner found "neurology per Dr. [J.H.] in 2017 reports his neuropathy most likely is due to 20 years of alcohol abuse[,] which is a known cause of [peripheral neuropathy]." However, this mischaracterizes the 2017 neurology report, in which the Veteran's neurologist noted that his alcohol abuse may be etiology, not that it is the most likely etiology. Reonal, 5 Vet. App. at 461. Accordingly, the claims must be remanded to obtain relevant outstanding VA treatment records-an October 2020 EMG report, specifically-and to provide the Veteran adequate etiological opinions that are not conclusory and do not rely on an inaccurate recitation of the evidence. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file all outstanding VA treatment records, particularly those dated since the June 2019 Statement of case. The Board is particularly interested in the October 2020 EMG report cited by the March 2023 VA examiner. 2. Obtain an addendum opinion from a clinician with appropriate expertise other than the April 2022 and March 2023 clinician to determine the nature and etiology of the Veteran's bilateral upper and lower extremity peripheral nerve conditions, to include bilateral upper and lower extremity polyneuropathy and right and left upper extremity ulnar neuropathy. The electronic claims file must be made available to and be reviewed by the examiner. The examiner is asked to pay particular attention to the Veteran's description of left-hand numbness and tingling made at his February 2022 Board hearing. **If the new examiner deems an in-person examination necessary, the Veteran should be scheduled for an in-person examination.** Following review of the claims file (and examination of the Veteran, if deemed necessary), the examiner must provide opinions on: Whether the Veteran's right upper extremity, left upper extremity, right lower extremity, and left lower extremity peripheral nerve conditions are at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) etiologically or otherwise related to his military service, to include his conceded herbicide agent exposure. In rendering these opinions, address the Veteran's contention that he used alcohol to cope with his left-hand numbness and tingling during service and whether these sensations represented manifestations of early-onset peripheral neuropathy, as the Veteran is competent to attest to factual matters of which he has or had first-hand knowledge, such as numbness and tingling sensations. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned medical explanation. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? All opinions must contain clear conclusions, supporting data, and reasoned medical explanation connecting the two. (Continued on the next page) ? 3. Then, readjudicate the claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Infante, Peter 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.