Citation Nr: 1137726 Decision Date: 10/06/11 Archive Date: 10/11/11 DOCKET NO. 05-34 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a left arm disability, including as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for a right arm disability, including as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The appellant is a veteran who served on active duty from October 1966 to October 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Roanoke, Virginia RO. In June 2006, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The Veteran submitted additional evidence with a waiver of initial agency of original jurisdiction consideration at the Travel Board hearing. In February 2009, the Board issued a decision that denied the Veteran's claim for service connection for a bilateral arm disability as well as claims for service connection for diabetes mellitus, erectile dysfunction, and a bilateral leg disability. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In March 2010, the Court vacated the Board's decision and remanded the issues to the Board for further action consistent with a Joint Motion for Remand (Joint Motion) by the parties. The Board remanded the matter in September 2010 for further development. In a July 2011 rating decision, service connection was granted for diabetes mellitus as well as for peripheral neuropathy of both lower extremities. In addition, special monthly compensation was awarded for loss of use of a creative organ. As the July 2011 rating decision represents a full grant of the diabetes mellitus, erectile dysfunction, and bilateral leg disability claims, they will not be addressed herein. This claim has been subject to Chairman's Memorandum 01-06-24 (September 21, 2006), which instituted a stay on all cases affected by the United States Court of Appeals for Veterans Claims' (Court) decision in Haas v. Nicholson, 20 Vet App 257 (2006) that reversed a decision of the Board which denied service connection for disabilities claimed as a result of exposure to herbicides. On May 8, 2008, the United States Court of Appeals for the Federal Circuit issued its decision in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) wherein it reversed the Court's decision, and issued mandate in Haas effective October 16, 2008. A petition for a writ of certiorari in Haas was denied by the United States Supreme Court on January 21, 2009. See Haas v. Peake, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). In light of the foregoing and Chairman's Memorandum 01-09-03 (January 22, 2009), which rescinds Chairman's Memorandum 01-06-24 in its entirety, the Board finds it may now proceed in the instant appeal. The appeal is REMANDED to the VARO. VA will notify the appellant if further action on his part is required. REMAND On June 2011 VA diabetes mellitus examination the Veteran denied numbness, tingling, or sensory loss. Physical examination at that time revealed normal monofilament testing, and normal motor, reflex, and sensory findings in the upper extremities. However, paresthesia in the right upper extremity was documented in the VA treatment records (February 2006), and complaints of right arm numbness were noted in private treatment records dated several months before the Veteran filed his claim in April 2004. He reported bilateral pain, numbness, and tingling in the upper extremities in his April 2004 claim. In McClain v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that a current disability may be shown even though the disability resolves prior to the adjudication of the claim as long as the Veteran has a disability at the time the claim is filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, bilateral upper extremity complaints have been evidenced during the pendency of the claim. The Veteran has recently been awarded service connection for diabetes mellitus. It is unclear whether the noted pain, numbness, and tingling in 2004 and 2006 was caused or aggravated by his diabetes mellitus or whether it is related to a nonservice-connected disability. It is noted that a February 2004 X-ray diagnosed degenerative joint disease of the cervical spine. The Court has also held that when VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A retrospective medical opinion may be necessary and helpful in cases when the evidence is insufficient for an adequate determination. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008). Accordingly, the case is REMANDED for the following action: 1. Obtain a retrospective medical opinion, with examination only if deemed necessary by the physician, in order to determine the etiology of the upper extremity numbness, pain and tingling reported in February 2004 and February 2006. After reviewing the claims file, an appropriate physician should identify any disorder manifested by numbness, pain, and/or tingling in the upper extremities in 2004 and/or 2006. The examiner should also opine: a. whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected diabetes mellitus caused or aggravated a disorder of either/both upper extremities manifested by numbness, pain, and/or tingling; and b. whether it is at least as likely as not that the Veteran has had a disorder of either/both upper extremities manifested by numbness, pain, and/or tingling that is related to service. The Veteran's claims file must be reviewed in conjunction with the opinion. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be so noted in the examination report, along with an explanation of the rationale for that conclusion. 2. Thereafter, readjudicate the Veteran's claims. If either remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. The appellant has the right to submit additional evidence and argument on the matters 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. 2010). _________________________________________________ GEORGE R. SENYK 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).