Citation Nr: 0947669 Decision Date: 12/16/09 Archive Date: 12/31/09 DOCKET NO. 04-44 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for peripheral neuropathy, also claimed as motor axonal neuropathy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Robben, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1977 to February 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which, in pertinent part denied entitlement to service connection for the above condition. In May 2007 and July 2008, the Board remanded the Veteran's appeal for additional development. The case has been returned to the Board for further adjudication. Unfortunately, the requested development has not been completed. 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 contends that he has developed motor axonal neuropathy as the result of heavy metal exposure during service. In the May 2007 and July 2008 remands, the Board directed that the Veteran be afforded the opportunity to undergo heavy metal testing recommended by an October 2004 VA examiner. See Daves v. Nicholson, 21 Vet App 46 (2007) (When VA’s duty to provide a medical examination is triggered, this duty includes the requirement that it provide reasonable tests and other examinations necessary to render a meaningful medical opinion); citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991) (holding duty to assist includes providing additional testing or examinations recommended by a VA examiner). The Veteran was provided a VA examination in October 2008, where the impression was undiagnosed medical or neurological illness or chronic pain syndrome. However, no heavy metal testing was done. In a May 2009 addendum to the 2008 VA examination report, the examiner stated that he did not know of any way to perform heavy metal testing at that facility or elsewhere. He suggested that the appropriate person establish contact with the Environmental Protection Agency (EPA) or other agencies or companies like Pacific Bio Labs where such testing might take place. This suggested development was also not undertaken. The Board notes that the October 2004 examiner who originally suggested the heavy metal testing was a doctor at the Boston VA medical center (VAMC) and apparently believed that heavy metal testing was feasible. This is the same facility where the October 2008 VA examiner conducted his examination. Furthermore, It appears that lab tests are routinely used for heavy metal testing in seriously exposed persons and include blood tests, liver and renal function tests, X-rays, and hair and fingernail analysis. While a doctor's office may not routinely conduct all of these tests, blood samples can be taken at most doctor's offices and sent to the appropriate labs. See Heavy Metal Toxicity, Life Extension, http://www.lef.org/protocols/prtcl-156a.shtml#lab; Hair Analysis, WebMD, http://www.webmd.com/skin-problems-and- treatments/hair-loss/hair-analysis, last visited December 1, 2009. As the VA examiner recommended heavy metal testing that has not yet been completed and as it is necessary to show exposure to heavy metals to demonstrate entitlement to service connection, the Board is obliged to remand this case so that the recommended testing can be accomplished. See Daves v. Nicholson, 21 Vet. App. 46 (2007); Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991) (holding that the duty to assist claimants with developing their claims extends to ensuring that testing recommended by VA examiners be conducted). While the October 2008 VA examiner may not have been familiar with heavy metal testing, another VA examiner at that facility was familiar enough to suggest that it be performed and more of an effort must be made to carry out this type of testing in order to properly adjudicate the Veteran's claim. As the Board's May 2007 and July 2008 remand orders have not been complied with, remand is necessary. See Stegall v. West, 11 Vet. App 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Accordingly, the case is REMANDED for the following action: 1. The agency or original jurisdiction (AOJ) should determine whether heavy metal testing is feasible. In this regard it should contact the appropriate VA facilities to determine whether such testing is possible. If such testing is possible, it should be conducted. If the testing is not feasible, the AOJ should contact the EPA, or other companies as suggested by the VA examiner in the May 2009 addendum. 3. If the Veteran's heavy metal testing is positive, the claims folder and a copy of this remand should be provided to a physician with the necessary expertise to render a medical opinion in this case. The examiner should provide an opinion as to whether it is as likely as not (50 percent or better probability) that the Veteran has current peripheral neuropathy (or has had such neuropathy at any time since August 2002) that is the result of exposure to chemicals, heavy metal, or ionizing radiation during service. The examiner should provide a rationale for the opinion that takes into account the Veteran's reports of symptoms and exposures. 3. If the benefits sought on appeal are not fully granted, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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. 2009). _________________________________________________ Mark D. Hindin 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) (2009).