Citation Nr: 1007297 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 04-41 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for peripheral neuropathy claimed as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G.A. Wasik, Counsel INTRODUCTION The Veteran had active duty service from October 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The issue on appeal was previously before the Board in June 2007 and April 2008. It was remanded both times to cure a procedural defect. In both the June 2007 and April 2008 Board remands, it was noted that the Veteran had raised the issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for peripheral neuropathy on a direct and presumptive basis. The issue was referred back to the RO for initial consideration both times. The RO still has not addressed these issues and, as a result, they are referred back to the RO for initial consideration for a third time. 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 on his part. REMAND In September 2008, a statement was received from R.K.R., Ph.D., M.D., wherein she indicated that she had been treating the Veteran since April 1996. She wrote that the Veteran had been diagnosed with diabetes mellitus type II seven years prior. She also indicated that the Veteran had diabetic peripheral neuropathic pain. The only medical evidence of record from Dr. R.K.R. are reports of psychological evaluations conducted in April 1996, July 1997 and March 1998. None of these records reference the presence of diabetes mellitus. It is not apparent to the Board upon what basis Dr. R.K.R. determined that the Veteran had diabetes mellitus since approximately 2001 nor upon what basis she determined that the Veteran had diabetic peripheral neuropathic pain. The Board finds the physician should be contacted and the medical records upon which this assertion is made should be obtained. A VA examination was conducted in May 2003. The examiner determined that the Veteran had peripheral neuropathy of the lower extremities for approximately 12 years but also determined that the Veteran did not have diabetes mellitus at the time of the examination. Based on this fact, he opined that there was no etiologic link between the peripheral neuropathy and diabetes mellitus. Significantly, this examiner reported that he did not have access to the Veteran's claims file when forming his opinion. The United States Court of Appeals for Veterans Claims has also held that an examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). This is particularly significant in the present case as there is some evidence already in the claims file dated in 2002 that indicates the Veteran had diabetes mellitus at that time. For instance, a November 2002 VA clinical record indicates the Veteran was finding it difficult to accept that he had diabetes mellitus. Furthermore, Dr. R.K.R. indicates that the Veteran had had diabetes mellitus since approximately 2001and the RO granted service connection for diabetes mellitus based on a clinical record dated just two months after the date of May 2003 VA examination. The Board finds that the VA examination conducted in May 2003 is inadequate to accurately adjudicate this claim. The Board is prohibited from reaching its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). And when the medical evidence is inadequate, the VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). The Board finds that another VA examination is required based on a review of all the medical evidence of record to determine if the Veteran has peripheral neuropathy which is secondary to the service-connected diabetes mellitus. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide the names and addresses of all medical care providers who treated him for peripheral neuropathy and/or diabetes mellitus. After securing any necessary releases, obtain those records which have not already been associated with the claims file. The Board is particularly interested in obtaining the complete medical records from Dr. R.K.R. 2. After the above development has been completed to the extent possible, schedule the Veteran for a VA neurological examination by an appropriately qualified health care professional to determine the etiology of any peripheral neuropathy found on examination. The Veteran's claims file must be made available to the examiner for review in connection with the examination. All indicated studies should be performed, and all findings reported in detail. The examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that any current peripheral neuropathy found on examination is causally related to the Veteran's service-connected diabetes mellitus. A complete rationale for all opinions must be provided. 3. After the completion of any development deemed appropriate in addition to that requested above, the issue of entitlement to service connection for peripheral neuropathy as secondary to diabetes mellitus should be readjudicated. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given the opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant and his representative have 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). _________________________________________________ BARBARA B. COPELAND 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).