Citation Nr: 1127599 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 01-07 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a disability manifested by numbness of the hands. 2. Entitlement to service connection for a left eye disorder, to include as secondary to diabetes mellitus, Type II. 3. Entitlement to a rating in excess of 20 percent for diabetes mellitus, Type II. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. H. Stubbs, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1968 to August 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The September 2007 rating decision addressed entitlement to an increased rating for diabetes mellitus; entitlement to service connection for a complication of the eyes; and whether new and material evidence had been submitted to reopen a claim of entitlement to service connection for numbness of the feet (only). The Veteran's April 2007 claim asserted entitlement to service connection for numbness and burning in his feet. The RO's July 2008 statement of the case addressed whether new and material evidence had been submitted to reopen a claim of entitlement to service connection for numbness in the hands and feet. A March 2011 rating decision granted entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, and for right eye cortical cataracts secondary to diabetes mellitus. As such, these issues are no longer before the Board. The Veteran withdrew his request for a Board hearing in a December 2008 written statement. The issues of entitlement to service connection for a heart condition and hypertension, to include secondary to diabetes mellitus, Type II have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 Numbness in Hands The Board was supplied with a temporary claims file which begins with the Veteran's April 2007 claim. It contains copies of March 2000 and July 1999 rating decision, but does not contain any of the evidence that would have been relied on in forming those rating decisions. Without any information regarding the Veteran's prior claim of entitlement to service connection for numbness of the hands the Board cannot determine whether new and material evidence has been submitted. The Board notes that May 2007 VA examination noted the Veteran had a loss of sensation in his hands in a glove distribution. The examiner also noted that the Veteran's peripheral neuropathy predated his diabetes mellitus, but that diabetes mellitus "can aggravate peripheral neuropathy and worsen the symptoms." An October 2009 VA examination noted the Veteran had a previous medical history with complaints of numb fingertips. During the examination he reported that he "does not notice much of that finger sensation" currently. While this seems to imply that he still has some loss of sensation in his fingers, the examiner did not specifically address the presence or absence of upper extremity peripheral neuropathy. On remand, the Veteran should be afforded an additional VA examination that includes a nexus opinion regarding peripheral neuropathy of the upper extremities, including aggravation by diabetes mellitus. Left Eye Disorder An October 2006 VA optometry note indicated the Veteran complained of watery, burning eyes when reading. He reported he no longer saw "floaters," but he previously reported them in an October 2005 visit. (No October 2005 record is contained in the temporary claims file). During a May 2007 VA examination the Veteran was noted to not have any visual impairment. He was, however, noted to have intermittent blurred vision due to diabetes mellitus. In October 2009, the Veteran was afforded a VA eye examination where he complained mostly of right eye pain. When asked what he was claiming by the examiner, the Veteran replied that he suffered from pain, burning and itching from his sinus to his right eye. He reported being hit in the eye with an umbrella. He also reported distorted vision during the day, and did not specify if one eye was causing his vision problem or both. The examiner noted the right eye had defects which could be associated with cataracts. He was without diabetic retinopathy (also noted in VA treatment records). The examiner opined that the Veteran's right eye cortical cataracts were at least as likely as not caused by or the result of his diabetes. As noted above, the Veteran is service connected for right eye cataracts. VA optometry records from October 2007 and June 2010 note that the Veteran has cataracts in both his left and right eyes. The October 2007 optometry note indicates the cataracts is asymptomatic. The June 2010 optometry note indicates the Veteran has mixed cataracts of both eyes. As there is an indication in the record that the Veteran has cataracts in both eyes, and the October 2009 VA examination provided a positive nexus between the Veteran's right eye cataracts and his diabetes mellitus, the Veteran should be afforded an additional VA eye examination to address the etiology of any left eye cataracts. Diabetes Mellitus A May 2007 VA diabetes mellitus examination noted that the Veteran did not have any restriction in his activities due to his diabetes. The October 2009 VA examination noted that the Veteran was able to cut his grass with a riding lawnmower, but that he was no longer able to tend his garden because he could not work in the sun. The Veteran reported not doing much strenuous work, but that he was able to play the keyboard and do work on the computer. The examination did not address whether these activities the Veteran no longer participated in were a result of necessary restriction in activities due to his diabetes. Additionally, the disability worksheet for diabetes mellitus VA examinations was updated in September 2010. As the October 2009 VA examination is two years old and did not provide a statement regarding the Veteran's restriction of activities, on remand the appellant should be afforded a new VA examination. Finally, ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, who treated the appellant for diabetes mellitus, peripheral neuropathy, and/or any left eye disorder. After the Veteran has signed any appropriate releases, those records not already associated with the claims file should be obtained. All attempts to procure records must be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Thereafter, the Veteran should be afforded a VA examination to determine the nature and extent of his diabetes mellitus. The complete claims folder and a copy of this remand are to be made available for the examiner to review. In accordance with the most recent disability worksheet for diabetes mellitus examinations, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any disability. The examiner must specifically address whether the appellant's diabetes requires a regulation of activities. That is, is it medically necessary for the appellant to avoid strenuous occupational and recreational activities due to his diabetes? A complete rationale must be provided for any opinion offered. 3. The Veteran must be scheduled for a VA neurological examination to determine if he has a disorder causing numbness of the hands. All indicated tests and studies are to be performed. The complete claims folder and a copy of this remand are to be made available for the examiner to review. If the Veteran is diagnosed with any disorder causing numbness of the hands, the examiner is opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that the disorder is a result of his active duty service. If not, is it at least as likely as not that the disorder is caused or aggravated by diabetes mellitus. A complete rationale must be provided for any opinion offered. 3. The Veteran should be scheduled for a VA eye examination by an ophthalmologist. All indicated tests and studies are to be performed. The complete claims folder and a copy of this remand are to be made available for the examiner to review. The ophthalmologist is to discuss VA treatment records noting bilateral cataracts and the October 2009 VA examiner's opinion that the Veteran's right eye cataracts are secondary to his diabetes mellitus. The ophthalmologist is then to opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that the disorder is a result of his active duty service. If not, is it at least as likely as not that any left eye disorder, to include cataracts, are caused or aggravated by diabetes mellitus. A complete rationale must be provided for any opinion offered. 4. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 5. After the development requested above has been completed to the extent possible, the AMC/RO must again review the record. If any benefit sought on appeal remains denied, the appellant and his representative must be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case must be returned to the Board together with all claims folders. 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). _________________________________________________ DEREK R. BROWN 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).