Citation Nr: 1102583	
Decision Date: 01/21/11    Archive Date: 01/26/11

DOCKET NO.  10-18 790	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, 
Minnesota


THE ISSUE

Entitlement to service connection for peripheral neuropathy of 
the upper and lower extremities, claimed as intermittent tingling 
of the extremities.  


REPRESENTATION

Appellant represented by:	Minnesota Department of Veterans 
Affairs


ATTORNEY FOR THE BOARD

Thomas D. Jones, Counsel






INTRODUCTION

The Veteran served on active duty from July 1967 to August 1971.  

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from a September 2009 rating decision of a Regional 
Office (RO) of the Department of Veterans Affairs (VA).  

The appeal is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.  VA will notify the appellant if 
further action is required.


REMAND

The Veteran seeks entitlement to service connection for 
peripheral neuropathy of the upper and lower extremities, claimed 
as tingling of the extremities.  He contends this disability 
results from herbicide exposure during service.  Under the 
provisions of 38 C.F.R. § 3.309(e), if a Veteran was exposed to 
an herbicide agent during active military, naval, or air service, 
the diseases set forth in 38 C.F.R. § 3.309(e) shall be service-
connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met 
even though there is no record of such disease during service, 
provided that the rebuttable presumption provisions of 38 C.F.R. 
§ 3.307(d) are also satisfied.  

According to 38 C.F.R. § 3.307(a)(6)(iii), a Veteran who, during 
active military, naval, or air service, served in the Republic of 
Vietnam during the Vietnam era shall be presumed to have been 
exposed during such service to an herbicide agent, unless there 
is affirmative evidence to establish that the Veteran was not 
exposed to any such agent during that service.  Service in 
Vietnam includes service in the waters offshore or service in 
other locations if the conditions of service involved duty or 
visitation in Vietnam.  38 C.F.R. § 3.313(a).  In the present 
case, the Veteran's service records confirm service in Vietnam 
pursuant to 38 C.F.R. § 3.307(a)(6), and thus, his exposure to 
herbicides is presumed.  Among the disabilities set forth at 
38 C.F.R. § 3.309(e) is acute and subacute peripheral neuropathy, 
defined as transient peripheral neuropathy that appears within 
weeks or months of exposure to an herbicide agent and resolves 
within two years of the date of onset.  38 C.F.R. § 3.309(e).  

The Veteran has also stated that his neurological symptoms of the 
extremities have worsened since he began treatment for his 
service-connected non-Hodgkin's lymphoma.  Service connection may 
be awarded for any disability which is due to or the result of, 
or is otherwise aggravated by, a service-connected disability.  
38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).  
Regardless of whether a claimant has explicitly raised a 
secondary service connection claim, VA must consider such a 
theory of entitlement if it is raised by the record.  See 
Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000) (holding 
that VA has an obligation to explore all legal theories, 
including those unknown to the veteran, by which he can obtain 
benefit sought for the same disability).  

In the present case, the Veteran was afforded a VA medical 
examination in April 2010.  Physical evaluation found no evidence 
of impairment in sensation to light touch or sharp or dull 
objects involving the upper or lower extremities.  Reflexes were 
equal and normal bilaterally, and Babinski's signs were negative.  
No impairment of the cerebral nerves was observed.  In the 
conclusion, the VA examiner stated, "[T]he Veteran complains of 
exacerbation of his peripheral neuropathy (numbness/tingling) 
after completion of chemotherapy related to his non-Hodgkin's 
lymphoma: patient has history of mild peripheral neuropathy since 
1971."  The wording of this conclusion makes it unclear if the 
VA physician is diagnosing the Veteran with peripheral 
neuropathy, or merely transcribing the Veteran's self-reported 
history.  Therefore, another VA medical examination is warranted, 
to clarify whether a current diagnosis of peripheral neuropathy 
is established, and the etiology of such a disorder.  

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA medical 
examination for the purpose of determining 
the etiology of any current peripheral 
neuropathy.  All pertinent symptomatology and 
findings should be reported in detail, and 
the examiner should note in the record 
his/her review of the claims file.  After 
reviewing the Veteran's medical history and 
physically examining him, the examiner should 
note whether a current diagnosis of 
peripheral neuropathy of the upper and/or 
lower extremities is warranted.  If so, the 
examiner should state whether it is at least 
as likely as not this disorder had its onset 
during active duty, or is due to or the 
result of a disease or injury incurred 
therein.  The examiner should also state 
whether it is as likely as not that any 
current peripheral neuropathy is due to, the 
result of, or otherwise aggravated by his 
service-connected non-Hodgkin's lymphoma, to 
include the treatment thereof.  (For VA 
purposes, aggravation is defined as a 
permanent worsening of the disability, beyond 
the natural progress of the disorder.)

The examiner should provide a complete 
rationale for all conclusions reached.  If 
the examiner determines that the requested 
opinion cannot be provided without resort to 
mere speculation, the examiner is asked to 
discuss why such an opinion is not possible.

2.  After undertaking any additional 
development deemed appropriate, and giving 
the appellant full opportunity to supplement 
the record, adjudicate the Veteran's pending 
claim in light of any additional evidence 
added to the record.  If any benefit sought 
on appeal remains denied, the Veteran and his 
representative should be furnished with a 
supplemental statement of the case and be 
afforded the applicable opportunity to 
respond before the record is returned to the 
Board for further review.  

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals for 
Veterans Claims for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 U.S.C.A. 
§§ 5109B, 7112 (West Supp. 2010).  



_________________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the 
Board of Veterans' Appeals is appealable to the United States 
Court of Appeals for Veterans Claims.  This remand is in the 
nature of a preliminary order and does not constitute a decision 
of the Board on the merits of your appeal.  38 C.F.R. 
§ 20.1100(b) (2010). 


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