Citation Nr: 25005458 Decision Date: 04/23/25 Archive Date: 04/23/25 DOCKET NO. 18-07 624 DATE: April 23, 2025 REMANDED Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is remanded. Entitlement to service connection for a respiratory disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from July 1965 to April 1969, to include service in Vietnam. His decorations include the Vietnam Service Medal and the Republic Vietnam Campaign Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), also known as the Agency or Original Jurisdiction (AOJ). In June 2022, the Veteran testified at a Board hearing before a Veterans Law Judge. The transcript of the hearing is of record. In February 2025, the Veteran was notified that the VLJ who held the hearing was no longer available to adjudicate the appeal. See February 2025 Notification Letter. The Veteran was offered the opportunity to have another hearing but declined. See March 2025 Correspondence. This matter was previously before the Board in November 2022 and February 2024, whereupon it was remanded for additional development. The case is now returned to the Board for further appellate adjudication. 1. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities 3. Entitlement to service connection for a respiratory disability The Veteran contends that he has peripheral neuropathy and/or radiculopathy of the upper and lower extremities that was incurred in or caused by service, to include as due to exposure to herbicide agents. See June 2022 Hearing Transcript; March 2025 Informal Hearing Presentation. In its February 2024 remand, the Board remanded these matters so the Veteran could be afforded VA medical opinions and/or examinations to assess the nature and etiology of his respiratory and peripheral neuropathy disabilities. Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. VA regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160 (b). When a Veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the Veteran lacked good cause to miss the scheduled examination. See 38 C.F.R. § 3.655 (a); Turk v. Peake, 21 Vet. App. 565, 569 (2008). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. In the present matter, VA examinations were necessary to establish entitlement to the benefits sought. Specifically, VA respiratory and radiculopathy medical opinions were necessary to assess the etiology of the Veteran's claimed disabilities and their etiology. The evidence of record was not sufficient to reach a decision on these issues. Regarding whether good cause was shown for the Veteran's failure to report to his scheduled VA examinations, the record shows that the Veteran had changed his address during the pendency of the appeal. The AOJ attempted to schedule examinations for the Veteran on multiple occasions including in May 2024, June 2024, July 2024, September 2024, and December 2024, resulting in returned mail and an inability to reach the Veteran was email or phone. An email from the Veteran in July 2024, however, indicates that the Veteran informed VA that he had been living in the Philippines for several months. See July 2024 Email Correspondence. The AOJ continued, however, to send correspondence to the Veteran at his prior address up until a new address was established in Arizona. See December 2024 SSOC. The Board notes that the record does not appear to document when and how the AOJ was informed of the Veteran's new address in Arizona, with an Examination Request dated 12/2/2024 utilizing the Veteran's prior address in Florida, only for the AOJ to utilize the Veteran's Arizona address in the SSOC dated 12/12/2024, a mere ten days later with no intermediate documentation of an address change. The Board finds that the Veteran has good cause for his failure to report to the necessary VA examinations. It appears that he did not receive adequate notice for his scheduled VA examinations as his examination request letters were returned undeliverable even when there appears to have been an updated address on file, or when the AOJ was otherwise informed that he was no longer at his prior address. The Board finds that there has not been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). These matters are REMANDED for the following action: 1. Conduct all appropriate development to verify the extent of the Veteran's exposure to asbestos, if any, to include sending a development letter to the Veteran soliciting any additional details he might possess with respect to pre-service, in-service, and post-service exposures to asbestos. After the foregoing development has been completed, prepare a summary/memorandum setting out specific findings with respect to the extent of the Veteran's exposure to asbestos, to particularly include with respect to his service, if any, aboard the U.S.S. Guadalcanal. 2 2. Obtain and associate with the claims file any outstanding VA treatment records. 3. After the foregoing development is completed, obtain medical opinions addressing the nature and etiology of his neuropathy disabilities, to include whether such may be related to in-service toxic exposure risk activity (TERA). If, in the opinion of the examiner, an in-person examination is needed to answer the questions below, such should be scheduled After reviewing the record, the examiner should address the following: a) Has the Veteran's pain and numbness in his upper extremities caused functional impairment at any time since November 2012 (when he filed his application for service connection) such that it may be considered a disability for VA purposes? b) Is it at least as likely as not (i.e., is the likelihood at least approximately balanced or nearly equal, if not higher) that any upper extremity neurological disability identified, and/or bilateral lower extremity neuropathy had onset in, or is otherwise related to service, to include his in-service toxic exposure risk activities (TERAs), which specifically include exposure to herbicides, contaminated water at Camp Lejeune, burning waste in Vietnam, and possibly to asbestos (assuming such is recognized by the AOJ)? In addressing that question, the examiner must specifically consider (a) the total potential exposure through all applicable military deployments of the Veteran, and (b) the synergistic, combined effect of all toxic exposure risk activities of the Veteran. In formulating his opinions, the examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A complete medical rationale for all opinions expressed must be provided. 4. Obtain medical opinions addressing the nature and etiology of his respiratory disabilities, to include whether such may be related to in-service toxic exposure risk activity (TERA). If, in the opinion of the examiner, an in-person examination is needed to answer the questions below, such should be scheduled. After reviewing the record, the examiner should answer the following: a) Has the Veteran had a diagnosis of asthma at any time since February 2012 (when he filed his claim for service connection)? In answering this question, the examiner should consider the December 2012 VA treatment record showing a severe exacerbation of COPD with asthmatic bronchitis as well as statements regarding asthma in the September 2023 examination and opinion. b) Is it at least as likely as not that the Veteran's COPD, emphysema, subsegmental atelectasis, fibrosis, and/or asthma (if identified as present) had onset in service, or is otherwise related to service to include his in-service toxic exposure risk activities (TERAs), which specifically include exposure to herbicides, contaminated water at Camp Lejeune, burning waste in Vietnam, and possibly to asbestos (assuming such is recognized by the AOJ)? In addressing that question, the examiner must specifically consider (a) the total potential exposure through all applicable military deployments of the Veteran, and (b) the synergistic, combined effect of all toxic exposure risk activities of the Veteran. A nexus opinion should be provided for each of these identified respiratory disabilities. The Board notes that even though the September 2023 VA examiner found that the Veteran's subsegmental atelectasis and fibrosis had resolved, she also found that they were diagnosed in 2019, which is during the period on appeal. Etiological opinions as to each of these disabilities must therefore be provided. In proffering the requested opinions, the examiner must consider the June 2022 VA treatment record in which a VA provider stated that the etiology of the Veteran's COPD appeared to be multi-factorial from chemical exposures during service and cigarette smoking. (Continued on the next page) ? A complete medical rationale for all opinions expressed must be provided. 5. Then, readjudicate the issues on appeal. M. Mills Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hillman, 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.