Citation Nr: 0810751 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 03-25 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for peripheral neuropathy, to include as due to herbicide exposure in Vietnam. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. C. Mackenzie, Counsel INTRODUCTION The veteran served on active duty from December 1967 to October 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board previously remanded this case in June 2004, July 2005, and October 2006. Notably, the issue on appeal was initially certified to the Board as a claim to reopen a previously denied claim on the basis of new and material evidence, but the Board recharacterized the issue as a de novo service connection claim in the July 2005 remand in view of concerns about the procedural history of the case. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND Preliminarily, the Board regrets that this case is being remanded for a fourth time. That notwithstanding, the case presents substantial procedural concerns must be adequately addressed prior to a final Board action. Indeed, in a February 2008 written brief presentation, the veteran's representative asserted that "this instant appeal is not yet ripe for appellate review" and "another remand is in order." In the July 2005 remand, the Board noted that a June 2005 VA treatment record indicated diet-controlled diabetes, with an assessment that included diabetic neuropathy, and the veteran had submitted a claim for diabetic neuropathy in the same month. In this regard, the Board observes that type II diabetes mellitus is among the diseases listed in 38 C.F.R. § 3.309(e), for which service connection may be granted on a presumptive, herbicide-related basis. The Board in its remand found the issue of service connection for diabetic neuropathy to be inextricably intertwined with the claim of service connection for peripheral neuropathy. On remand, the RO was instructed to adjudicate the diabetic neuropathy claim as well. Subsequently, in its October 2006 remand, the Board noted that the Appeals Management Center (AMC) in Washington, DC had not adequately complied with the instruction to adjudicate the claim of service connection for diabetic neuropathy. The Board thus remanded again, instructing the RO to adjudicate the claim of service connection for diabetic neuropathy, to include as a result of in-service exposure to herbicide. The Board further noted that, if deemed necessary, the RO should feel free to schedule a pertinent VA examination to determine the type or etiology of any current diabetes, to include whether any current diabetes is related to in-service exposure to herbicides. Following the Board's remand, the AMC readjudicated the veteran's claim in an October 2007 Supplemental Statement of the Case, without affording him a VA examination. The AMC continued the denial, noting "the medical evidence notes you have diabetic neuropathy" while at the same time stating that "you do not have a current diagnosis of diabetes mellitus type II." Accordingly, service connection for peripheral neuropathy could not be established on a secondary basis as related to diabetes mellitus type II as related to exposure to herbicides. The AMC's conclusion that the veteran has been found to have diabetic neuropathy but not type II diabetes mellitus is, at a minimum, problematic in view of the findings from the June 2005 VA medical record indicating diabetes and the absence of a VA examination. It thus becomes evident that a VA examination addressing the nature and etiology of any current type II diabetes mellitus and peripheral or diabetic neuropathy is "necessary" under 38 U.S.C.A. § 5103A(d) (West 2002). Such an examination is particularly warranted because of seemingly contradictory medical findings regarding diabetes and diabetic neuropathy. In terms of evidence received since the initial July 2005 Board remand, a VA treatment record from September 2005 contains a diagnosis of diabetic neuropathy, while a July 2007 VA treatment record indicates a "diabetic foot examination." Another July 2007 VA treatment record, however, contains a notation that "[p]atient is not diabetic." Similarly, the veteran denied a history of diabetes when providing his medical history during private neurological testing in August 2007. Moreover, a January 2007 private blood chemistry report indicates a blood glucose level of 96, noted to be within the normal range of 75 to 100. These contradictions further underline the need for a VA examination addressing the question of a type II diabetes mellitus diagnosis. Accordingly, the case is REMANDED for the following action: 1. The veteran should be afforded a VA examination, with an appropriate examiner, to determine the nature and etiology of any current type II diabetes mellitus and neuropathy, claimed both as peripheral neuropathy and diabetic neuropathy. The veteran's claims file should be made available to the examiner prior to the examination, and the examiner is requested to review the entire claims file in conjunction with the examination. First, the examiner should, after any necessary tests and studies, state whether the veteran has a current diagnosis of type II diabetes mellitus. If the examiner answers this question in the negative, this determination should be discussed in the context of the June 2005 VA treatment record indicating that the veteran is "diabetic." If a diagnosis of type II diabetes mellitus is rendered, the examiner should then, again based on any necessary testing and studies, render an opinion as to whether the veteran has any neuropathy that is of diabetic origin. If so, the examiner should describe which extremities are involved and the severity of such neuropathy. Separately, and especially if a diagnosis of Type II diabetes mellitus is not substantiated on examination, the examiner is requested to provide an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that any current neuropathy, if present, is etiologically related to the veteran's period of active service. A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. 2. After completion of the above development, the veteran's claim of service connection for peripheral neuropathy should be readjudicated. This readjudication must include consideration of service connection for type II diabetes mellitus and diabetic neuropathy. If the determination of the peripheral neuropathy claim remains adverse to the veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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. 2006). _________________________________________________ DEBORAH W. SINGLETON 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) (2007).