Citation Nr: A24084792 Decision Date: 12/18/24 Archive Date: 12/18/24 DOCKET NO. 230711-362373 DATE: December 18, 2024 REMANDED Entitlement to service connection for left upper extremity (LUE) neuropathy is remanded. Entitlement to service connection for right upper extremity (RUE) neuropathy is remanded. REASONS FOR REMAND The Veteran honorably served in the United States Army from July 1969 to April 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2023 and June 2023 Appeals Modernization Act (AMA) rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ). The Veteran's claim of entitlement to service connection for LUE neuropathy was denied in the June 2023 rating decision. Therein, the AOJ found that new and relevant evidence warranted readjudication of the Veteran's claim and denied it on the merits. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c) (absent clear and unmistakable error, favorable findings made by the AOJ are binding on the Board). His entitlement to service connection for RUE neuropathy was denied in the May 2023 decision, which implicitly found that new and relevant evidence warranted readjudication and denied in on the merits. Id. In his July 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), the Veteran elected the Hearing docket. A Board hearing was held by the undersigned Veterans Law Judge (VLJ) in August 2024. As discussed prior to the hearing, the undersigned has elected to take jurisdiction of the issue of RUE neuropathy although it was not included on his July 2023 VA Form 10182. Regarding the Veteran's LUE neuropathy, the Board may only consider the evidence of record at the time of the June 2023 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In the adjudication of the Veteran's RUE neuropathy claim, the Board may only consider the evidence of record at the time of the May 2023 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decisions on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. However, because the Board is remanding the claims currently on appeal, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to service connection for LUE neuropathy is remanded. 2. Entitlement to service connection for RUE neuropathy is remanded. The Veteran seeks service connection for LUE and RUE neuropathy and contends that it arises from his exposure to herbicides during his active-duty service. See September 2011, January 2017, March 2017, and March 2018 VA Forms 21-526EZ, Applications for Compensation; see also February 2023 VA Form 20-0995, Supplemental Application for Compensation. Remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38?U.S.C. §?5103; 38?C.F.R. §?3.159. Here, the basis for remand concerns pre-decisional errors arising from VA's duty to assist. 38?C.F.R. §?20.802. The Veteran has been afforded several VA examinations over the course of his multiple claims. See March 2017, January 2018, and April 2023 C&P Exams (March 2017, January 2018, and April 2023 Peripheral Nerves Disability Benefits Questionnaires (DBQs). More recently, he was afforded medical opinions regarding the disabilities at issue. See April 2023 and June 2023 C&P Exams (April 2023 and June 2023 Medical Opinion DBQs). The Board has carefully considered the Veteran's claims file, including his conceded exposure to herbicides in service and his contentions that his disabilities arise from same. See April 2023 VA Memorandum (April 2023 Toxic Exposure Risk Activity (TERA) Memorandum); August 2024 Hearing Transcript. As the one-year presumptive period for early-onset peripheral neuropathy does not bar a claim of entitlement to service connection for peripheral neuropathy on a direct basis, the April 2023 TERA opinions of record are inadequate upon which to decide the Veteran's claims. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed Cir. 1994) (direct service connection may nevertheless be established by demonstrating that the disease was, in fact, "incurred" during service by proof of direct causation); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely"); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (requiring the Board to ensure that medical opinions are made on the basis of sufficient facts or data and the application of reliable medical principles). The June 2023 medical opinion regarding the Veteran's LUE neuropathy fails to address the Veteran's herbicide exposure and also relies upon an absence of documentation both in and after service as the basis for the opinion. See id.; Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of documented treatment in service or thereafter is not fatal to a service connection claim); Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that a VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence") In consideration of the Veteran's diagnosed LUE and RUE neuropathy disabilities and his conceded exposure to herbicides, the Board finds that adequate medical opinions are required to adjudicate the claims. It thus follows that the AOJ's failure to obtain medical opinions prior to issuing the May 2023 and June 2023 rating decisions thus constitutes pre-decisional duty to assist errors requiring remand. See 38 C.F.R. § 20.802(a). The matters are REMANDED for the following action: 1. Forward the Veteran's claims file for an addendum opinion regarding the Veteran's LUE and RUE neuropathy disabilities from a VA examiner. The need for a physical examination is left to the discretion of the medical professional offering the addendum opinion. The entire claims file must be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. The medical professional should provide an opinion to the following: (a.) Whether the Veteran's left upper extremity neuropathy disability was incurred in or is otherwise related to the Veteran's active-duty service, to include as due to exposures to herbicides and in consideration of the total potential exposure through the Veteran's military deployment and the synergistic, combined effect of all toxic exposure risk activities (TERAs)? (b.) Whether the Veteran's right upper extremity neuropathy disability was incurred in or is otherwise related to the Veteran's active-duty service, to include as due to exposures to herbicides and in consideration of the total potential exposure through the Veteran's military deployment and the synergistic, combined effect of all TERAs? The examiner is advised that VA has conceded the Veteran's participation in a TERA, including exposure to herbicides in service. See 04/14/2023 VA Memorandum. Although an independent review of the claims file is required, the Board calls the medical professional's attention to the following: (i) the Veteran's private treatment records (see 09/17/2024 Medical Treatment Record - Non-Government Facility); (ii) March 2017, January 2018, and April 2023 C&P Exams (March 2017, January 2018, and April 2023 Peripheral Nerves Disability Benefits Questionnaires (DBQs); and (iii) the history and symptoms of the Veteran's disabilities as provided by the Veteran, including his lay statements and hearing testimony (see 04/13/2017 and 10/29/2018 Correspondences; 08/05/2024 Hearing Transcript). The examiner is reminded that a medical opinion is adequate if it is based upon consideration of the Veteran's prior medical history and describes the Veteran's condition in sufficient detail so as to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21?Vet. App.?120, 124 (2007); see also Ardison v. Brown, 6?Vet. App.?405, 407 (1994). This requires the opinion to "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22?Vet. App.?295, 301 (2008). The examiner is asked to explain the reasons behind any opinions expressed and conclusions rendered. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). DUSTIN L. WARE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buntin, M.E. 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.