Entitlement to service connection for a peripheral nerve disorder of the left lower extremity is remanded.

Citation Nr: A26069948 Decision Date: 07/30/26 Archive Date: 07/30/26 DOCKET NO. 210609-164938 DATE: July 30, 2026 REMANDED Entitlement to service connection for a peripheral nerve disorder of the left lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1971 to March 1991. This case comes to the Board from a May 2021 decision of the Agency of Original Jurisdiction (AOJ), which denied service-connected compensation for a claimed peripheral nerve disability of the left lower extremity. Because the decision was issued after February 19, 2019, the Appeals Modernization Act (AMA) applies to this case. 38 C.F.R. §§ 19.2, 20.4. In March 2025, the Veteran testified before the undersigned at a virtual hearing. A transcript of that hearing is of record. In his VA Form 10182 ("Notice of Disagreement" or "NOD"), the Veteran selected the option of review by the Board with a hearing. This means the Board's review is limited to the evidence available at the time of the May 2021 decision, the hearing transcript, and the evidence submitted by or on behalf of the Veteran within 90 days after the hearing. See 38 C.F.R. § 20.302. In his testimony, the Veteran attributed his claimed left lower extremity disability, which he described as neuropathy, to a back injury during his active duty service. He explained that he fell down on a tracked vehicle in 1984, injuring his lower back. Beginning in the 1990s, he continued, he began to experience peripheral nerves symptoms, including pain moving from his back into his left lower extremity. In response to questions, the Veteran said he believed he had provided a letter from a physician in private practice, attributing his claimed left lower extremity neuropathy to his in-service back injury. According to the Veteran, he provided this letter before the AOJ denied his claim and intended to submit another copy during the post-hearing evidence submission period. Unfortunately, during its review of the claims file, the Board has not been able to identify any letter fitting this description which was sufficient during the evidentiary review period. The Veteran provided copies of certain medical records during the evidence submission period. But these records did not indicate a left lower extremity neuropathy diagnosis. Nor do they include an opinion from any medical professional suggesting that a peripheral nerve disorder of the left lower extremity is related to service. Although the need for further delay is regrettable, for three reasons, it is necessary to remand this case. To help decide the claim, the AOJ obtained copies of treatment records from the Veteran's local VA Medical Center (VAMC). Most of these documents describe treatment provided directly to the Veteran by VAMC personnel. But they include several entries indicating that the VAMC arranged for the Veteran to receive treatment from medical providers in private practice pursuant to the community care and/or Veterans Choice programs. According to the notes, the community care providers sent copies of treatment records to the VAMC, which were scanned and remain available to VAMC personnel using the "VistA Imaging" program. Unfortunately, it is unclear whether the AOJ made any attempts to use this program to retrieve the missing community care notes and to associate them with the electronic claims file. One of the VAMC notes indicated that the Veteran received monthly disability benefits from the Social Security Administration (SSA). The AOJ appropriately requested copies of any medical records in the custody of SSA. And the SSA responded to that request by indicating, "There are no medical records." Pursuant to its duty to assist the Veteran, VA must attempt to obtain relevant records from other Federal departments or agencies, including the SSA. See 38 C.F.R. § 3.159(c)(2). Even if the SSA does not possess any medical records concerning the Veteran, copies of the agency's claims processing documents, especially any written decision resolving his claim for disability benefits, could be relevant to this appeal. On remand, the AOJ should make a new request for records to the SSA. In May 2021, a nurse practitioner conducted an examination of the Veteran's peripheral nerves, and prepared an unfavorable opinion, concluding that a relationship between the claimed disability and service is less likely than not. During the hearing, the Veteran criticized the thoroughness of the May 2021 examiner. Because his testimony was not part of the record before the denial of his claim, these complaints do not, in themselves, justify a remand order instructing the AOJ to obtain a new opinion. But there is enough information in the May 2021 examination report and opinion to demonstrate that they are inadequate to support an unfavorable decision on the claim. To explain the unfavorable conclusion, the examiner provided only the following rationale: "medical records are silent for radiculopathy and exam was negative." This rationale is inconsistent with Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (an examiner may not rely on the absence of the claimed condition in the service medical records, standing alone, to justify an unfavorably nexus opinion). It might be argued that Buchanan does not apply to the quoted opinion because the examiner gave two reasons for rejecting the theory that a left lower extremity peripheral nerve condition began in service: 1) the absence of a diagnosis in service; and 2) the examiner's finding that no left lower extremity peripheral nerve condition was present at the time of the May 2021 examination. But according to the medical history summary of the May 2021 peripheral nerves questionnaire, the Veteran told the examiner he experienced intermittent numbness and tingling in his left lower extremity. Under these circumstances, an adequate opinion would explain why the examiner rejected those statements. The VAMC notes, the SSA's response to the request for medical records, and the inadequate May 2021 examiner's opinion were associated with the claims file before the AOJ denied the claim in May 2021. For this reason, the AOJ's denial of the left lower extremity claim without seeking to correct these problems amounted to a pre-decisional failure to satisfy its duty to assist. Under the AMA procedures, the Board must remand issues when necessary to correct a pre-decisional duty to assist error. See 38 C.F.R. § 20.802(a). The matter is REMANDED for the following action: 1. Make reasonable efforts to obtain and upload all progress notes and other records concerning the Veteran's medical treatment from private medical providers pursuant to the Veterans Choice and/or Community Care Programs. The available VAMC records indicate that copies of private medical records are available to VA personnel through the VistA Imaging program. If for any reason the AOJ cannot obtain copies of all records of the treatment the Veteran received from non-VA providers using VistA Imaging or by searching other information storage systems available to VA staff, the AOJ should invite the Veteran to authorize the release of these and any other medical records which he believes may be relevant to this appeal. If the Veteran authorizes the release of any records in response to this request, the AOJ should request copies of all previously unavailable, identified records from their respective records custodians. The AOJ should continue its efforts to obtain all identified records unless it is reasonably clear that the requested records do not exist or that further attempts to obtain them would be futile. 2. The AOJ should send a request to the Social Security Administration (SSA) for copies of all the agency's records concerning this Veteran, not only medical records, but also all other SSA records, including but not limited to copies of the Veteran's application for benefits and the SSA decision. The text of the AOJ's records request to the SSA, and any necessary follow-up requests, should make clear that the records requested include copies of the Veteran's application to the SSA and the SSA decision. The AOJ should carefully review the SSA's response to this request. If the SSA's response does not indicate that the agency searched for copies of the Veteran's application for benefits and the SSA's decision, the AOJ should make a follow-up request. 3. Schedule the Veteran for an examination with a qualified person to help determine the nature and etiology of any current disability manifested by pain and numbness in the left lower extremity, including peripheral neuropathy. All indicated testing should be accomplished and all symptomatology associated with any left lower extremity peripheral nerve conditions should be identified. After completing the examination and reviewing the electronic claims file, the examiner should answer these questions: (a) Is it at least as likely as not (a likelihood that is approximately evenly balanced or nearly equal, if not higher) that any current peripheral nerve disorder of the left lower extremity had its initial onset during service or is otherwise related to any in-service disease, injury, or event, including the Veteran's in-service back injury? (b) Is it at least as likely as not (a likelihood that is approximately evenly balanced or nearly equal, if not higher) that any current peripheral nerve disorder of the left lower extremity is proximately due to, the result of, or aggravated by a separate service-connected disability, including the Veteran's lumbar spine degenerative arthritis and/or his ruptured left achilles tendon with atrophy of the left calf? The examiner should provide a clear rationale thoroughly explaining the medical reasons for his or her opinions. The examiner is advised that the absence of in-service medical records reflecting the presence of the claimed disability, standing alone, is insufficient to justify an unfavorable opinion. The examiner is further advised that the Veteran is competent to provide information about symptoms that are observable to a layperson, including, if he remembers, information about when he began to experience pain and/or numbness in his left lower extremity. 4. The AOJ must ensure that the requested examination report and opinions comply with the terms of this remand. If any report is insufficient, the AOJ should return it to the relevant examiner for any necessary corrective action. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.