Citation Nr: 1200144 Decision Date: 01/04/12 Archive Date: 01/13/12 DOCKET NO. 08-35 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right upper extremity. 2. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left upper extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from August 1964 to August 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, in which the RO granted service connection and assigned initial 10 percent ratings for peripheral neuropathy of the right and left upper extremities, effective March 24, 2008. Because the Veteran has disagreed with the initial ratings assigned following the grants of service connection, the Board has characterized the issues on appeal in light of Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). 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 Board's review of the claims file reveals that further action on the claims on appeal is warranted. In this regard, the Veteran's peripheral neuropathy of the upper extremities was most recently evaluated during an April 2008 VA examination. At that time, he described frequent, daily numbness in his hands. He further described a stabbing pain in his hands at night, which woke him up. He denied receiving any treatment, including medication, for his complaints, and reported that, besides being woken up at night due to pain, he experienced no other effects on the use of his hands or his daily activities. On examination, muscle bulk and tone were normal, with no atrophy. Strength was normal throughout the extremities. Sensation to light touch, pinprick, and vibration were reduced. Deep tendon reflexes were intact and symmetrical at 2 out of 4. The diagnosis was peripheral sensory neuropathy of the bilateral upper and lower extremities. Records of VA treatment dated from June 2007 to May 2008 reflect that, in April 2008, the Veteran left a message stating that his community medical provider had recommended Gabapentin/Neurontin. He was started on a trial of Gabapentin. In May 2008, the Veteran reported that Gabapentin was providing pain control. In his June 2008 notice of disagreement, the Veteran stated that he was taking oral medication for his neuropathy in the upper extremities. He also reported that this neuropathy caused chronic pain in his arm, adding that his wrist and fingers would not move unless he used his other hand to move them. He stated that his arm felt like it was going to sleep most of the day and would go completely numb at night. He further indicated that he woke up three to four times a night because of arm pain. In his October 2008 substantive appeal, the Veteran reported that, since May 2008, he had to stop taking the medication he had been prescribed for neuropathy because of severe side effects. In his November 2011 Informal Hearing Presentation (IHP), the Veteran's representative asserted that the April 2008 VA examination was too old to effectively demonstrate the current level of the Veteran's disability and added that the Veteran asserted that the April 2008 VA examination did not accurately portray his current disability picture. The Veteran is entitled to a new VA examination where there is evidence (including his statements) that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); VAOPGCPREC 11-95. The fact that the Veteran was started on medication for his neuropathy subsequent to the April 2008 VA examination suggests a worsening of peripheral neuropathy in the upper extremities since April 2008. Moreover, the most recent VA examination evaluating the Veteran's peripheral neuropathy in the upper extremities is now over three years old. To ensure that the record reflects the current severity of these disabilities, the Board finds that a more contemporaneous examination, responsive to the pertinent rating criteria, is needed. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011). See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) and Caffrey, 6 Vet. App. at 381 (an examination too remote for rating purposes cannot be considered contemporaneous). The record also indicates that there are outstanding treatment records which are potentially pertinent to the claims on appeal. In this regard, during VA treatment in October 2007, the Veteran reported that he saw Dr. C. in Holton, Kansas. In February 2008, a VA nurse practitioner noted that the Veteran was mainly followed at the Topeka VA Medical Center (VAMC) for pharmaceutical benefits, and had been started on Glyburide for diabetes mellitus by his private physician. As noted above, the Veteran reported in April 2008 that his community medical provider had recommended Gabapentin/Neurontin. VA has a duty to obtain relevant records of treatment reported by private physicians. Massey v. Brown, 7 Vet. App. 204 (1994). The foregoing VA treatment records indicate that the Veteran has received treatment from a private physician, perhaps Dr. C., which is potentially pertinent to the claims on appeal. While private treatment records dated from July 1999 to May 2006, including records of treatment from Dr. C., have been associated with the claims file, the record indicates that more recent private treatment records are available. On remand, the AMC/RO should attempt to obtain all outstanding, pertinent private treatment records. The Board further notes that the most recent VA treatment records currently associated with the claims file are dated in May 2008. On remand, the AMC/RO should obtain all outstanding pertinent VA treatment records, to include any records of treatment from the Topeka VAMC, dated since May 2008. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for peripheral neuropathy in the upper extremities. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file. A specific request should be made for treatment records from the Topeka VAMC, dated since May 2008, and records of treatment from the community medical provider referenced in the April 2008 VA treatment record discussed above. 2. After all available records have been associated with the claims file, arrange for the Veteran to undergo VA examination to evaluate the service-connected peripheral neuropathy of the right and left upper extremities. Prior to the examination, the claims folder must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The physician should describe all symptoms (and associated impairment of function) related to each disability, and should opine as to whether such impairment is equivalent to mild, moderate, or severe incomplete paralysis or complete paralysis of the affected nerves. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. After ensuring that the development is complete, re-adjudicate the claims. If not fully granted, issue a supplemental statement of the case before returning the claims to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2011). _________________________________________________ K. PARAKKAL 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) (2011).