Citation Nr: A24029730 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 240412-431177 DATE: June 6, 2024 REMAND ORDER Entitlement to service connection for pulmonary fibrosis is REMANDED. Entitlement to service connection for bronchitis is REMANDED. Entitlement to service connection for allergic seasonal rhinitis is REMANDED. Entitlement to service connection for sleep apnea is REMANDED. Entitlement to service connection for right upper extremity peripheral neuropathy is REMANDED. Entitlement to service connection for left upper extremity peripheral neuropathy is REMANDED. Entitlement to service connection for migraine headaches is REMANDED. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from July 1973 to April 1977 and from March 1982 to February 1986. The rating decision on appeal was issued in September 2023 and constitutes an initial decision; therefore, the modernized review system governs procedure. In the May 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the September 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claims of service connection for right and left upper extremity peripheral neuropathy, migraine headaches, pulmonary fibrosis, bronchitis, allergic seasonal rhinitis, and sleep apnea, 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). REASONS FOR REMAND The September 2023 rating decision found that new and relevant evidence had been received to readjudicate the claims of service connection for right and left upper extremity peripheral neuropathy, migraine headaches, pulmonary fibrosis, bronchitis, allergic seasonal rhinitis, and sleep apnea. These are favorable findings by the AOJ that the Board will not disturb. 38?U.S.C. § 5104A; 38?C.F.R. § 3.104(c). I Service connection for pulmonary fibrosis, bronchitis, allergic seasonal rhinitis, and sleep apnea Prior to the September 2023 rating decision on appeal, the Veteran identified relevant outstanding private treatment records, including from his pulmonologist, in a June 2023 VA treatment record. A remand is required to allow VA to obtain these records. II Service connection for right and left upper extremity peripheral neuropathy and migraine headaches The issue of entitlement to service connection for right and left upper extremity peripheral neuropathy and migraine headaches is remanded to correct a duty to assist error that occurred prior to the September 2023 rating decision on appeal. The AOJ obtained August 2023 medical opinions prior to the September 2023 rating decision on appeal. However, these medical opinions did not provide an adequate rationale regarding the Veteran's right and left upper extremity peripheral neuropathy and migraine headaches. Remand is required to obtain a medical opinion pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act). See 38 U.S.C. § 1168. The PACT Act requires that, when a veteran, whose active service subjected the veteran to participation in a toxic exposure risk activity (TERA), files a claim to service connect a disability and there is evidence of such disability, VA must provide the veteran with a VA examination and obtain a medical opinion addressing the possibility of a nexus between the claimed disability and the TERA. See 38 U.S.C. § 1168(a)(1). The September 2023 rating decision conceded participation in a TERA based on the Veteran's verified service in Republic of Vietnam. The September 2023 rating decision also found that the Veteran had been diagnosed with right and left upper extremity peripheral neuropathy and migraine including migraine variants based on August 2023 VA examinations. Because the Board is unable to grant this claim at this time, and because the requirements to obtain a medical opinion in compliance with 38 U.S.C. § 1168 are met, but such opinion has not yet been obtained, a remand is needed for VA to obtain one. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. A. at Duke Pulmonology clinic in Fayetteville, North Carolina. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's upper extremity peripheral neuropathy. Is the upper extremity peripheral neuropathy at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) related to the Veteran's in-service exposure to toxins due to his verified service in Republic of Vietnam. When providing this opinion, the examiner must consider: 1) the total potential exposure through all applicable deployments; and 2) the synergistic, combined effect of all toxic exposure risk activities of the Veteran. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's migraine headaches. Is migraine headache disorder at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) related to the Veteran's in-service exposure to toxins due to his verified service in Republic of Vietnam. When providing this opinion, the examiner must consider: 1) the total potential exposure through all applicable deployments; and 2) the synergistic, combined effect of all toxic exposure risk activities of the Veteran. STEVEN V. ADLER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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.