Citation Nr: 18160497
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 12-20 210
DATE:	December 28, 2018
REMANDED
The issue of entitlement to service connection for a low back condition is remanded.
The issue of entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy is remanded.
REASONS FOR REMAND
The Veteran served on active duty from April 1968 to November 1969.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied entitlement to service connection for a low back condition and peripheral neuropathy of the bilateral upper and lower extremities.  The Veteran timely perfected an appeal of the November 2008 rating decision.  See February 2009 Notice of Disagreement; June 2012 Statement of the Case; July 2012 VA Form 9.
In February 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge, and a copy of the hearing transcript has been added to the record.
In May 2015, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development.  Thereafter, in a September 2016 decision, the Board denied entitlement to service connection for a low back condition and bilateral upper and lower extremity peripheral neuropathy.  
The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court).  By Memorandum Decision issued in June 2018, the Court vacated and remanded the September 2016 decision.  The case has been returned to the Board for further appellate action consistent with the Court’s decision.
The Board finds that a remand is necessary to comply with the terms of the June 2018 Memorandum Decision.
In the May 2015 remand, the Board noted that there may be outstanding private treatment records.  Specifically, the Veteran testified at the February 2015 Board hearing that he physically delivered private medical records from as early as 1972 to the Loma Linda VAMC.  The Board directed that such records be obtained.  As noted by the Court in the June 2018 Memorandum Decision, there is no indication that the AOJ attempted to obtain such records.  See Stegall v. West, 11 Vet. App. 268 (1998).  The Board notes that VA treatment records from October 2008 show that non-VA records were scanned into VistA Imaging.  On remand, the AOJ must attempt to obtain all outstanding electronic medical records stored in systems other than CAPRI, including VistA Imaging.  The AOJ should also attempt to obtain any other outstanding private and VA treatment records.
The Veteran was afforded a VA examination August 2015, which the Board relied on to deny the Veteran’s claim in the September 2016 decision.  The examiner diagnosed degenerative arthritis of the spine, but found that the condition was less likely than not related to service because (1) there were no records of the condition during service; (2) “no medical evidence of low back assessment, treatment immediately or several years after discharge [was] provided to indicate pattern or trend of back condition that may have [been] incurred during service”; and (3) the Veteran’s low back diagnosis and treatment did not occur until 2008.  With regard to peripheral neuropathy, the examiner opined that it was less likely related to service or to a low back condition, and most likely due to diabetes.  
In the June 2018 Memorandum Decision, the Court advised the Board “not to rely in any way on the August 2015 VA examination because the examination is not only uncompliant with the May 2015 Board remand, it is also based on multiple inaccurate factual predicates.”  The Court specifically noted that the record reflects that the Veteran was diagnosed with a back condition and peripheral neuropathy, at the latest, in 2005.  The Court also noted that the record contains no diagnosis of diabetes, despite the examiner’s attribution of the Veteran’s peripheral neuropathy to diabetes.  
Finally, the Court concluded that the Board provided an inadequate statement of reasons and bases for failing to address a reasonably raised theory of service connection for peripheral neuropathy, i.e., as due to herbicide exposure.  
Early onset peripheral neuropathy is a disease associated with exposure to certain herbicide agents.  See 38 C.F.R. § 3.309 (e).  In September 2013, VA amended this regulation by removing “the requirement that acute and subacute peripheral neuropathy appear ‘within weeks or months’ after exposure and that the condition resolve within two years of the date of onset in order for the presumption to apply.”  78 Fed. Reg. 54,763-01, 54,764 (September 3, 2013).  Under the amendments, peripheral neuropathy no longer needs to be transient, but it must still become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicide agents to qualify for the presumption of service connection.
Here, as noted by the Court, the Veteran’s exposure to herbicides, including Agent Orange, is conceded because he served in a unit that, as determined by the Department of Defense, operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during the qualifying time period.  See 38 C.F.R. § 3.307 (a)(6)(iv).  While the earliest medical diagnosis of peripheral neuropathy in the appellate record dates from 2005, the Veteran has asserted that he experienced symptoms of neuropathy soon after service.  
In light of the foregoing, the claim must be remanded for an adequate examination regarding the etiology of the Veteran’s diagnosed low back condition and peripheral neuropathy.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise has no probative value); see also Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (noting that an examination was found inadequate where the examiner did not comment on the Veteran’s report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion).
The matters are REMANDED for the following action:
1. Obtain and associate with the Veteran’s claims file all outstanding VA treatment records dated from May 2017 to the present documenting treatment for the issues on appeal. 
Additionally, obtain the scanned non-VA treatment records referenced in an October 14, 2008 VA treatment record, as well as any other records of non-VA treatment stored in systems other than CAPRI, including VistA Imaging.  All attempts to obtain such records must be clearly documented in the claims file.  If no such records are located, that fact should be documented in the claims file, and the Veteran should be notified of such pursuant to 38 C.F.R. § 3.159 (c).
2. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for the issues on appeal, to specifically include (1) Community Medical Group of Riverside from 1972 to the present and (2) a San Bernardino chiropractor from 1980 to the present.  After securing any necessary releases, request any identified records that are not duplicates of those already associated with the claims file.  If any requested records cannot be obtained, the Veteran should be notified of such pursuant to 38 C.F.R. § 3.159 (c).
3. Only after all available records have been associated with the claims file, afford the Veteran an appropriate VA examination to determine the nature, onset, and likely etiology of the Veteran’s low back condition.  The entire claims file and a copy of this Remand must be made available to the examiner and the examiner shall indicate in the report that the claims file was reviewed.  Any tests or studies deemed necessary should be conducted, and the results should be reported in detail.
The examiner should render an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s currently diagnosed low back condition, to specifically include degenerative arthritis, was incurred in, caused by, or is otherwise related to, the Veteran’s military service, to include the Veteran’s reports of injuring his back while lifting and carrying heavy artillery rounds while serving as a cannon crewmember.  
The examiner should also opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran had arthritis of the low back in active duty service or within one year of his discharge from active duty in November 1969.  
The examiner should carefully consider the Veteran’s lay statements regarding the onset of his symptoms and continuous nature of his symptoms since service.  Additionally, the examiner should closely review the Veteran’s VA and private treatment records when considering the development of the low back condition over time.  The examiner should address the likelihood that in-service injuries such as the ones described by the Veteran could have caused the Veteran’s currently diagnosed low back condition.
The examiner’s report must reflect consideration of the Veteran’s entire documented medical history and assertions and all lay evidence, particularly VA and private treatment records documenting low back treatment and the Veteran’s statements regarding low back pain in service and since discharge.
If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.  The examiner must provide a thorough rationale for each opinion given.
4. Only after all available records have been associated with the claims file, afford the Veteran an appropriate VA examination to determine the nature, onset, and likely etiology of the Veteran’s bilateral upper and lower extremity peripheral neuropathy.  The entire claims file and a copy of this Remand must be made available to the examiner and the examiner shall indicate in the report that the claims file was reviewed.  Any tests or studies deemed necessary should be conducted, and the results should be reported in detail.
After examining the Veteran and reviewing the claims file, the examiner should respond to the following questions:
(a.) Is the Veteran’s peripheral neuropathy of the bilateral upper and/or lower extremities “early-onset” peripheral neuropathy?
(b.) If so, is it at least as likely as not (i.e., 50 percent probability or greater) that such peripheral neuropathy manifested to at least a mild degree in severity within one year of herbicide agent exposure?  Please note that exposure to herbicide agents is presumed during the Veteran’s Korean service, which ended in October 1969.
(c.) If “early onset” peripheral neuropathy is not diagnosed, is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s bilateral upper and/or lower extremity peripheral neuropathy was incurred in, caused by, or is otherwise related to, the Veteran’s military service, to include as due to herbicide agent exposure?
The examiner’s report must reflect consideration of the Veteran’s entire documented medical history and assertions and all lay evidence.  The examiner must specifically discuss and consider service treatment records showing left foot/ankle complaints and right foot complaints in 1968 and 1969, as well as the Veteran’s lay statements regarding onset of symptoms associated with his peripheral neuropathy.
If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.  The examiner must provide a rationale for each opinion given.
5. Following the completion of the foregoing, and any other development deemed necessary, the AOJ should readjudicate the Veteran’s claim.  If the claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response.  Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order.
 
DEBORAH W. SINGLETON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Kipper, Associate Counsel

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