Citation Nr: 25005265 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 14-15 730 DATE: April 17, 2025 REMANDED Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. REASONS FOR REMAND The Veteran had active military service from October 1968 to September 1970 and active naval service from November 1971 to July 1973. Unfortunately, during the pendency of the appeal, the Veteran died on January [REDACTED] 2024. The substituted appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision issued by the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). By way of history, this case was remanded by the Board in April 2020, December 2020, and April 2021. The case was subsequently denied by the Board in September 2021. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a May 2023 Memorandum Decision, the Court vacated the Board's decision and remanded the case to the Board for action consistent with the terms outlined in the decision. The Board thereafter remanded the case for further development in an October 2023 decision. Although the Board regrets any additional delay, further development is once again needed before an adjudication on the merits can be made. Service Connection - Right and Left Lower Extremity Peripheral Neuropathy The appellant contends that the Veteran's right and left lower extremity peripheral neuropathy was secondary to service-connected hammertoes left foot with surgical removal at the 5th metatarsal head (hereinafter, "hammertoe disability"). Before his death, the Veteran reported that his peripheral neuropathy was caused by hammertoe surgery performed in 1972. He also stated that he experienced increased post-surgical numbness in his feet and toes. In October 2023, the Board remanded this matter for an additional medical opinion after finding that the previous opinions obtained were inadequate. In its remand directives, the Board directed that the examiner needed to provide an opinion as to whether the Veteran's peripheral neuropathy was caused or aggravated by his hammertoe disability. The Board also stated that the examiner "must discuss ... the Veteran's report that he experienced increased post-surgical numbness in his feet and toes, and the VA medical opinion and associated findings provided by the Veteran's podiatrist in July 2012." Pursuant to the remand directives, a medical opinion was obtained in June 2024. After "acknowledging" the Veteran's lay statements and the other evidence of record, the examiner opined that it was less likely than not that the Veteran's bilateral peripheral neuropathy was caused by his hammertoe disability. The examiner listed the common causes of peripheral neuropathy and indicated that it was more likely that the Veteran's diabetes, advanced age, or history of smoking caused his peripheral neuropathy. The examiner provided nearly the same rationale as to why it was less likely than not that the Veteran's peripheral neuropathy was "aggravated beyond its natural progression" by his hammertoe disability. The examiner concluded that any such determination of aggravation on their part would be "completely speculative." The Board finds that the June 2024 medical opinion does not comport with the October 2023 remand directives and is therefore inadequate for adjudication purposes. Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303 (2007). Though the examiner "acknowledged" the Veteran's lay statements and other evidence of record, they did not discuss why they were rejecting the Veteran's reports of onset or worsening after his hammertoe surgery, nor did they discuss the adverse findings of the 2012 private podiatry report as required in the Board's directives. Moreover, the examiner's rationale regarding aggravation focused entirely on causation rather than aggravation. In that regard, the examiner essentially failed to provide an opinion as to the aggravation facet of the Veteran's secondary service connection claim. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Furthermore, the examiner indicated that the Veteran's hammertoe disability did not aggravate his bilateral peripheral neuropathy "beyond its natural progression" and/or that there was no "unnatural aggravation." However, service connection for aggravation is warranted where the claimed disability would have been less severe were it not for the service-connected disability, even if the worsening of the condition occurs due to the natural progression of that condition. See Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall, 11 Vet. App. 268. Accordingly, remand for an addendum opinion is warranted. Further, in a June 2024 Memorandum, VA found that the Veteran had been exposed to herbicides during his active service. However, the Board could not determine the basis for that determination as there does not appear to be confirmatory evidence in that regard of record in the claims file. Accordingly, on remand, appropriate development should be undertaken to confirm the Veteran's exposure to herbicides during active service. The matters are REMANDED for the following action: 1. Conduct the appropriate development to confirm the Veteran's exposure to herbicides while in active service. All information and evidence used to support a determination in this regard must be added to the claims file. 2. Return the claims file to a VA examiner who has not previously provided an opinion in this matter and with appropriate expertise to provide an addendum medical opinion to determine the nature and etiology of the claimed RLE and LLE peripheral neuropathy. The claims file must be made available to and reviewed by the examiner. Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's RLE and/or LLE peripheral neuropathy was caused by, aggravated by, or would not have occurred but for service-connected hammertoes. In forming the opinion, the examiner must discuss service treatment records associated with the Veteran's hammertoe surgery in February 1972, the Veteran's report that he experienced increased post-surgical numbness in his feet and toes, and the VA medical opinion and associated findings provided by the Veteran's podiatrist in July 2012. The rationale for all opinions expressed must be provided. 3. Confirm that all medical opinions provided comport with this remand and undertake any other development determined to be warranted 4. Then, readjudicate the appeal. If the decision remains adverse to the appellant, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Davis, Alexandra J. 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.