Citation Nr: 1123319 Decision Date: 06/20/11 Archive Date: 06/28/11 DOCKET NO. 07-28 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the upper left extremity, to include as secondary to the Veteran's service-connected Type II diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy of the upper right extremity, to include as secondary to the Veteran's service-connected Type II diabetes mellitus. 3. Entitlement to service connection for peripheral neuropathy of the lower left extremity, to include as secondary to the Veteran's service-connected Type II diabetes mellitus. 4. Entitlement to service connection for peripheral neuropathy of the lower right extremity, to include as secondary to the Veteran's service-connected Type II diabetes mellitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1959 to August 1963. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Muskogee, Oklahoma. The RO in St. Petersburg, Florida, is currently handling the matter. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this matter, a remand is required before the claims can be properly adjudicated. A remand is required in order to afford the Veteran a VA examination to determine the nature and etiology of his currently diagnosed Type II diabetes mellitus neuropathy. In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010). Such an examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record: (1) contains competent evidence that the claimant has a current disorder, or persistent or recurrent symptoms of disorder; and, (2) indicates that the disorder or symptoms may be associated with the claimant's active military, naval, or air service; but, (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Id. Here, the Veteran was diagnosed with Type II diabetes mellitus neuropathy by the VA Medical Center (VAMC) in July 2007. Throughout his appeal, including in his August 2007 Substantive Appeal (on VA Form 9), the Veteran has contended that his currently diagnosed Type II diabetes mellitus neuropathy is related to his already service-connected Type II diabetes mellitus. Therefore, the Board finds that a remand is required in order to afford the Veteran VA examinations to determine the nature and etiology of his currently diagnosed Type II diabetes mellitus neuropathy of the bilateral upper and lower extremities. The Veteran has never been afforded a VA medical nexus opinion for these claims. Thus, the Board finds that an examination is needed to determine whether these disorders are related to the Veteran's active military service, to include his service-connected Type II diabetes mellitus. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA peripheral nerves examination to ascertain the nature and etiology of his currently diagnosed Type II diabetes mellitus neuropathy. Properly notify the Veteran of the examination by sending notice of the details of the examination to the Veteran at his correct address. Send the notice with sufficient time in advance to allow the Veteran to attend the examination. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. The examiner must express an opinion as to whether it is "more likely than not" (likelihood greater than 50%), "at least as likely as not" (50%), or "less likely than not" (less than 50% likelihood) that the Veteran's currently diagnosed Type II diabetes mellitus neuropathy of his bilateral lower and upper extremities had its onset during his active military service, to include as due to his service-connected Type II diabetes mellitus. A complete rationale should be provided for any opinion or conclusion. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. The Veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND at whatever location it is scheduled, and to cooperate in the development of his case. The consequences of failure to report for a VA examination may include denial of his claims. 38 C.F.R. §§ 3.158, 3.655 (2010). 2. After the above action has been completed, readjudicate the Veteran's claims. If the claims remain denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC), and afford them the appropriate period of time within which to respond thereto. The Veteran 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 2002). _________________________________________________ MARJORIE A. AUER 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).