Citation Nr: 1114892 Decision Date: 04/15/11 Archive Date: 04/21/11 DOCKET NO. 05-26 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for peripheral vascular disease, to include as secondary to diabetes mellitus, type II. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Associate Counsel INTRODUCTION The Veteran had active service from August 1962 to December 1965. This matter comes before the Board of Veterans' Appeals (Board) from a January 2004 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO in October 2008; a transcript is of record. In a January 2009 decision, the Board denied entitlement to service connection for peripheral vascular disease. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). While that case was pending at the Court, the Veteran's attorney and the VA Office of the General Counsel filed a joint motion to vacate the Board's decision and remand the Veteran's claim for readjudication. In a February 2010 Order, the Court granted the motion, vacated the Board's January 2009 decision, and remanded this case to the Board for readjudication. 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 The Veteran underwent a VA examination in June 2006. On physical examination no abnormal vascular changes were found, and the examiner wrote that the effect of the peripheral vascular disease was a decrease in sensation. The examiner noted that in 2001 the Veteran could walk only half a block, which had increased to two or three blocks after surgery for peripheral vascular disease. The examiner opined that diabetes is a risk factor for coronary artery disease and that peripheral artery disease can worsen these conditions, but did not opine that this had occurred in the case of the Veteran. The U.S. Court of Appeals for Veterans Claims, in Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), held that once VA undertakes the effort to provide an examination it must obtain a fully adequate one. Furthermore, a medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In the present case, the examiner was asked to address whether the Veteran's diabetes had worsened his peripheral vascular disease. The joint motion filed in the Court indicates that the June 2006 VA examination report was inadequate and should not have been relied upon by the Board, because the examiner did not fully address whether the Veteran's peripheral vascular disease was aggravated by his service-connected diabetes mellitus, type II. Therefore, a new examination must be obtained before the claim can be decided on the merits. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide sufficient information, and, if necessary, authorization, to enable the RO to obtain any additional evidence, not already of record, which pertains to the claim for service connection for peripheral vascular disease, to include as secondary to diabetes mellitus, type II. Invite the Veteran to submit all pertinent evidence in his possession, and explain the types of evidence that it is his ultimate responsibility to submit. 2. After all available records and/or responses from each contacted entity have been associated with the claims file, or the time period for the Veteran's response has expired, the RO should arrange for the Veteran to undergo a VA examination to evaluate his peripheral vascular disease. The claims file, to include a complete copy of this Remand, must be made available to the examiner, and the report of the examination should include discussion of the Veteran's documented history and contentions regarding his peripheral vascular disease. a. All appropriate tests and studies and/or consultation(s) should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. b. The examiner should then specifically state whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that peripheral vascular disease was incurred in service or was manifested within one year after service or is causally related to any in-service event, injury, or treatment; or whether such a relationship to service is unlikely (i.e., less than a 50-50 probability), with the rationale for any such conclusion set out in the report. c. The examiner should state the baseline manifestations that are due to the affects of peripheral vascular disease, the increased manifestations that are proximately due to type II diabetes mellitus based on medical considerations, and the medical considerations supporting an opinion that increased manifestations of peripheral vascular disease are proximately due to the service connected diabetes mellitus. d. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If the examiner cannot answer any question in the case without resorting to unsupported speculation, the examiner should so state, and explain why that is so. 3. Thereafter, the RO should readjudicate the Veteran's claims for service connection for his claimed peripheral vascular disease, to include as secondary to diabetes mellitus, type II. If any benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. 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). ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of th1e Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2010).