Citation Nr: 1134876 Decision Date: 09/19/11 Archive Date: 09/23/11 DOCKET NO. 06-34 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the lower extremities, bilaterally. 2. Entitlement to a disability evaluation in excess of 10 percent for peripheral neuropathy of the right upper extremity. 3. Entitlement to a disability evaluation in excess of 10 percent for peripheral neuropathy of the left upper extremity. ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from June 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Veteran was previously represented by the Disabled American Veterans (DAV). In March 2009, VA received notice from the Veteran revoking the DAV as his representative. The Veteran has proceeded with his claim without representation. 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 Service Connection for Peripheral Neuropathy of the Lower Extremities The Veteran contends that he is entitled to service connection for peripheral neuropathy of the lower extremities. Regrettably, further evidentiary development is necessary before appellate review may proceed on this matter. The record contains a fair amount of seemingly contradictory evidence regarding this issue. According to a December 2003 VA examination, there was no electrodiagnostic evidence of peripheral neuropathy in the lower extremities. A May 2005 nerve conduction study (NCS) of the lower extremities was also interpreted to be normal. VA examination in February 2009, however, revealed the Veteran to be suffering from diminished ankle reflexes bilaterally. Finally, during the Veteran's June 2009 VA examination, he reported numbness in the feet bilaterally. The examiner concluded that the Veteran was suffering from sensory loss, but the examiner failed to indicate whether the sensory loss was in the upper extremities, lower extremities, or both. The examiner also diagnosed the Veteran with peripheral neuropathy, but again, failed to indicate what extremities were in fact affected by the peripheral neuropathy. In light of the above evidence, the Veteran should be afforded an additional VA examination in which a medical opinion specifically regarding the lower extremities is provided. The evidence at least suggests a possibility of peripheral neuropathy of the lower extremities, and to deny the Veteran's claim without further clarification would be unjust. Increased Ratings for Peripheral Neuropathy of the Upper Extremities The Veteran also contends that he is entitled to disability evaluations in excess of 10 percent for his peripheral neuropathy of the upper extremities, bilaterally. However, additional evidentiary development should be undertaken on these issues as well before appellate review proceeds. For historical purposes, the Veteran was originally granted service connection for peripheral neuropathy of the upper extremities, as secondary to his diabetes mellitus, in a January 2004 rating decision. 10 percent disability evaluations were assigned to each upper extremity under Diagnostic Code 8615, effective as of December 15, 2003. In September 2005, VA received a claim from the Veteran seeking entitlement to increased disability evaluations. This claim was denied by the RO in a March 2006 rating decision. VA received a timely notice of disagreement from the Veteran in April 2006, and in September 2006, the RO affirmed the previous denial. The Veteran appealed this decision to the Board in October 2006. The record demonstrates that the Veteran was last afforded a VA examination for his peripheral neuropathy in June 2009. As already discussed in the previous section, however, this examination is not entirely probative as it fails to distinguish whether the upper extremities, lower extremities, or both are affected by sensory loss. A much more detailed and comprehensive examination was performed in February 2009. However, this examination took place more than two and a half years ago. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). While the Veteran has not specifically alleged a worsening in his disabilities, he should nonetheless be afforded a more recent VA examination for his peripheral neuropathy of the upper extremities as he is already to be scheduled for a VA examination for his peripheral neuropathy of the lower extremities. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA neurological examination of the upper and lower extremities. The Veteran's claims file and a copy of this remand must be provided to the examiner for review upon examination. The examiner is asked to address the following: (a) Determine whether the Veteran suffers from peripheral neuropathy of either lower extremity. If so, the examiner should opine as to whether it is at least as likely as not that this condition is secondary to the Veteran's diabetes mellitus. The examiner must also describe in detail all neurological symptomatology associated with this condition. The Veteran's lay statements regarding symptomatology should also be fully discussed. If the Veteran is found to not be suffering from peripheral neuropathy of the lower extremities, this fact should be clearly stated in the examination report. A complete rational must be provided for all opinions offered. (b) Describe in detail all neurological symptomatology associated with the Veteran's peripheral neuropathy of the upper extremities. The Veteran's lay statements regarding symptomatology should be fully discussed. 2. After completion of the above, the claims should be reviewed in light of any new evidence. If the claims are not granted, the Veteran should be furnished an appropriate supplemental statement of the case (SSOC) and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2010). _________________________________________________ J. A. MARKEY 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) (2010).