BVA9502469 DOCKET NO. 94-01 877 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for loss of feeling in both arms/carpal tunnel syndrome. 2. Entitlement to service connection for loss of feeling in both arms/carpal tunnel syndrome, claimed as residuals of exposure to herbicides in Vietnam. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Chaplin, Associate Counsel REMAND The veteran had active duty from August 1965 until August 1967. The veteran filed a claim seeking service connection for loss of feeling in both arms. He alleges that the bilateral loss of feeling in the arm began with numbness of his fingers before he left Vietnam and is a result of exposure to Agent Orange. He was afforded a Department of Veterans Affairs medical examination in September 1991 at which the examiner's impression was: "(1) Bilateral carpal tunnel syndrome and (2) Bilateral loss of sensation, is most likely functionally." By a rating action in June 1992, the RO denied service connection for loss of feeling in both arms/carpal tunnel syndrome. A rating decision on entitlement to service connection for loss of feeling in both arms due to exposure to Agent Orange was deferred. The veteran was so notified and disagreed with the denial and initiated this appeal. In his substantive appeal, the veteran indicated that carpal tunnel syndrome had never been mentioned to him in previous medical treatment and that the symptoms he experiences are not similar to those of carpal tunnel syndrome. The veteran was afforded a personal hearing in January 1994. In Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989), a United States District Court voided all benefit denials under 38 C.F.R. § 3.311a, the "dioxin" (Agent Orange) regulation, which was promulgated under the "Dioxin and Radiation Exposure Compensation Standards Act," 38 U.S.C.A. § 1154(a) (West 1991), and remanded the case to the Department of Veterans Affairs for revision of the regulation in accordance with the ruling of the Court. Adjudication of the veteran's claim regarding exposure to Agent Orange has been deferred by the RO pending promulgation of the new regulations. The regulations have now been revised and the new regulations pertaining to Agent Orange exposure, expanded to include all herbicides used in Vietnam, now provide for a presumption of exposure to herbicide agents for veterans who served on active duty in Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6) (1994). The veteran's active duty included service in Vietnam during the Vietnam era. Consequently, it is presumed that he was exposed to Agent Orange or other herbicide agents while in Vietnam. Diseases associated with exposure to certain herbicide agents are now enumerated in 38 C.F.R. § 3.309(e), the most recent version of which is published at 59 Fed. Reg. 5107 (1994) and amended at 59 Fed. Reg. 29724 (1994). Further, the Secretary of Veterans Affairs formally announced in the Federal Register, on January 4, 1994, that a presumption of service connection based on exposure to herbicides used in Vietnam was not warranted for specified conditions, or for "any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted." 59 Fed. Reg. 341 (1994). Supplemental information consisting of a discussion of the scientific and medical evidence relied upon in support of the final regulations follows the formal declaration. 59 Fed. Reg. 341-346 (1994). Therefore, claims for service connection for disabilities based on exposure to Agent Orange may now be adjudicated. See VBA Circular 21-94-1, Processing of Claims Based on Exposure to Herbicide Agents (Feb. 15, 1994). In addition, the United States Court of Appeals for the Federal Circuit recently determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub.L. No. 98-542, § 5, 98 Stat. 2715, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the United States Court of Veterans Appeals (Court) has held that where the issue involves medical causation, competent medical evidence which indicates that the claim is plausible or possible is required to set forth a well-grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). In order to ensure due process, the RO must have an opportunity to review the veteran's claim for service connection for disabilities claimed as residual to Agent Orange exposure. In addition, we note that this claims file is a rebuilt folder. The June 1992 rating action indicates that the original C-file was lost and there was a prior denial of service connection for an unknown condition. A subsequent rating action in June 1993 assumed the prior denial was for service connection for residuals of a punji stick injury. We would point out that two of the four lay statements, submitted by the appellant in the current claim filed in 1990, are dated in March 1984, the other two are undated. This would suggest that these lay statements had been previously filed with an earlier claim. As the claim is being remanded, another attempt should be made to locate the original C-file. The veteran has referred to receiving medical treatment in 1982 at the Westside Department of Veterans Affairs Medical Center (VAMC) from Dr. Abtahi . He also claims going to a hospital for treatment for many years and having a nerve removed from his arm. A Report of Contact form dated in April 1992 noted that there was no record of treatment at Westside VAMC. It is our opinion that another attempt be made to locate the treatment records. At his personal hearing in January 1994, the veteran testified that a VA physician, Dr. Updike, stated that his disorder could be related to exposure to Agent Orange. We also note that the veteran has not been afforded an Agent Orange protocol examination. In view of the presumed evidence of exposure in Vietnam, we find that the veteran should be afforded a special VA Agent Orange protocol examination to determine whether he has the claimed disabilities, and whether his complaints are related to Agent Orange exposure. To ensure that the Department of Veterans Affairs (VA) has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the regional office (RO) for the following development: 1. The RO should make another attempt to secure the veteran's service medical records and original claims file through official channels. 2. The RO should obtain the names and addresses of all medical care providers who treated the veteran for bilateral loss of feeling in arms and carpal tunnel syndrome since August 1967. After securing the necessary release, the RO should obtain these records. 3. The RO should make another attempt to obtain the veteran's medical records from the Westside VA Medical Center and treatment by the VA physicians, Drs. Abtahi and Updike. 4. The RO should afford the veteran an Agent Orange protocol examination. The veteran claims that the loss of feeling in both arms/carpal tunnel syndrome are related to Agent Orange exposure: The examiner should express an opinion as to whether the veteran's complaint is medically related to exposure to herbicide agents. The claims file and a copy of this REMAND shall be made to the examiner for review prior to the examination. 5. The RO should adjudicate the veteran's claim for service connection for the residuals of exposure to Agent Orange, claimed as bilateral loss of feeling in arms and bilateral carpal tunnel syndrome, pursuant to VBA Circular 21-94-1 (Feb. 15, 1994), and with attention to the most recent version of 38 C.F.R. §§ 3.307, 3.309(e), published at 59 Fed. Reg. 5107 (1994), with amendments published at 59 Fed. Reg. 29724 (1994) as well as the Combee decision. 6. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. JAMES U. JOHNSON Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).