Citation Nr: 1040170 Decision Date: 10/26/10 Archive Date: 11/01/10 DOCKET NO. 07-14 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, including as secondary to Agent Orange exposure. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, including as secondary to Agent Orange exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active service from October 1965 to August 1967. The claims of entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, including as secondary to Agent Orange exposure, come before the Board of Veterans' Appeals (Board) on appeal of a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified in support of these claims at a hearing before the undersigned at the RO in May 2008. In October 2008, the Board remanded the claims of entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC) in Washington D.C. VA will notify the Veteran if further action is required REMAND The Veteran previously perfected an appeal of the RO's denial of a claim of entitlement to service connection for diabetes mellitus, including as secondary to Agent Orange exposure; but in September 2006, his representative submitted a written statement that was construed as a withdrawal of that appeal. During his May 2008 hearing before the Board, the Veteran again raised the claim of entitlement to service connection for diabetes mellitus. The Veteran's DD Form 214 reflects that the Veteran served on active duty from October 1965 to August 1967, including in the Republic of Vietnam. He is therefore presumed to have been exposed to an herbicide agent, including Agent Orange, during such service. The claim for service connection for diabetes was previously denied, and the Veteran withdrew the appeal, because he had not been given a diagnosis of diabetes mellitus. In January 2009, the Veteran submitted a November 2008 report by a private podiatrist, which included a finding of diabetes mellitus, type 2. In the report, it was indicated that the Veteran had only recently been diagnosed with this condition. Under 38 C.F.R. § 3.309(e), this disability is presumed to be related to the Veteran's Agent Orange exposure. The Veteran has submitted a report of evaluation conducted by a private podiatrist in November 2008. The podiatrist noted that the Veteran had diabetic peripheral neuropathy. The issue of entitlement to service connection for diabetes mellitus is inextricably intertwined with the issues of entitlement to service connection for peripheral neuropathy. Harris v. Derwinski, 1 Vet. App. 180 (1991). In its previous remand, the Board sought a medical opinion as to whether the Veteran had peripheral neuropathy related to Agent Orange exposure or to any other disease or injury in service. In this regard there is some lay evidence of a continuity of symptomatology beginning in service. The Veteran underwent a VA examination in December 2008. Initially the examiner opined only as to the relationship between the peripheral neuropathy and Agent Orange, and provided no rationale for that opinion. The AMC sought clarification from the examiner. In May 2009, the examiner provided reasons why the peripheral neuropathy was unrelated to Agent Orange, but went on to conclude that the peripheral neuropathy was unrelated to service without providing any rationale. This opinion is inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion depends on its rationale); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a medical opinion was inadequate where it failed to take into account lay evidence of injuries and symptomatology). Accordingly, the appeal is REMANDED for the following: 1. The agency of original jurisdiction (AOJ) should adjudicate the Veteran application to reopen the claim for service connection for diabetes mellitus. 2. The Veteran should be afforded a VA examination to determine whether current peripheral neuropathy is related to a disease or injury in service. The examiner should review the claims folder and note such review in a written report. The examiner should provide an opinion as to whether it is at least as likely as not that peripheral neuropathy of any extremity began in service or is otherwise related to a disease or injury in service. The examiner should note the finding of diabetic neuropathy, discussed above, and the lay reports of a continuity of symptomatology since service. If the examiner discounts the lay reports of continuity, he or she should provide reasons for doing so. 3. The AOJ should review the examination report to insure that it is adequate and contains the opinions asked for in this remand. 4. If the benefit sought on appeal is not fully granted, the AOJ should issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order. 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. 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).