Citation Nr: 1215569 Decision Date: 05/01/12 Archive Date: 05/10/12 DOCKET NO. 09-46 779A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for peripheral neuropathy of the left lower extremity (LLE), to include as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to August 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran had a hearing before the Board in February 2012 and the transcript is of record. 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 on his part. REMAND The Veteran claims he has had symptoms of left leg numbness and radiating pain since the late 1990s. His diabetes was diagnosed around November 1998 and, therefore, he believes his left leg symptoms could be related to his diabetes, which is now a service-connected disability. The VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). While the Veteran received a duty to assist letter in June 2007 explaining how to substantiate his service connection claim directly, no letter was sent to the Veteran explaining how service connection is established on a secondary basis. That is, a disability that was caused or aggravated by a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310 (2011). In light of the Veteran's claim and the fact that service connection for diabetes mellitus, was granted during the pendency of this appeal, corrective action is required. Aside from notification, the medical evidence in this case is ambiguous as to whether the Veteran actually has peripheral neuropathy of the left lower extremity. VA outpatient treatment records indicate sporadically that the Veteran has "sciatica" and "neuropathies," but at the same time indicate normal neurological examinations. VA outpatient treatment records also note the Veteran's diagnoses of "chronic pain syndrome" and significant low back disorders, which could be responsible for the Veteran's symptoms of the left lower extremity. The Veteran was afforded a VA examination in March 2008 where the examiner found a normal neurological examination of all four extremities and specifically opined the Veteran had no peripheral neuropathy. The examiner did note, additionally, that the Veteran's numbness in the thighs was secondary to his low back disorders (a non-service connected disorder). In contrast, however, a May 2008 VA outpatient treatment record noted a diagnosis of diabetic neuropathy. The Veteran was afforded a diabetes VA examination in April 2010 and, curiously, at that time the Veteran denied any symptoms of peripheral neuropathy. Extremity testing done at that time were all within normal limits. The Veteran also was afforded a VA neurological examination in September 2011 related to an upper extremity claim. At that time, EMG studies were all within normal limits, but lower extremity testing was not done at that time. Most recently, VA outpatient treatment records dated in 2012 note the Veteran's complaints of LLE neurological pain. In January 2012, the Veteran's VA podiatrist noted foot neuropathies, but it is not clear whether actual testing was done to confirm the diagnosis. Similarly, in February 2012, the Veteran's general physician diagnosed the Veteran with chronic pain syndrome with sciatica and cervical neuropathies. The actual neurological findings in the report, however, were within normal limits. Accordingly, it is unclear whether the February 2012 "diagnoses" are part of the Veteran's "chronic pain syndrome" or actually associated with the service connection diabetes mellitus. In short, there is conflicting medical evidence as to whether the Veteran has a neurological disorder of the LLE and if so, the likely etiology of any found LLE disorder. Medical evidence inconsistently has attributed the Veteran's LLE symptoms to the Veteran's service, his service-connected diabetes, his non-service connected low back disorders, and some other non-service connected chronic pain disorder. As such, the Board finds a new VA examination is necessary prior to the adjudication of this claim. The RO should also take this opportunity to obtain recent VA outpatient treatment records from March 2012 to the present. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran and his representative a letter advising them specifically of the laws and regulations pertaining to secondary service connection claims for his claimed condition. 2. Obtain the Veteran's medical records from the VA Medical Center in Bay Pines, Florida from March 2012 to the present. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 3. After obtaining the above records, to the extent available, schedule the Veteran for a neurological examination to determine the current nature and likely etiology of the claimed peripheral neuropathy of the left lower extremity, to include as secondary to diabetes mellitus. The claims folder should be made available to the examiner for review and all indicated testing should be conducted. Based on the examination and review of the record, the examiner should address the following: (a) Does the Veteran have any neurological disorder affecting the left lower extremity? If so, identify the specific diagnosis. (b) If the answer to (a) is yes, answer the following: (i) is it at least as likely as not (50 percent probability) that any currently diagnosed LLE neurological disorder was incurred in or is otherwise related to service? (ii) If the answer to (i) is no, is it at least as likely as not (50 percent probability) that the Veteran's service-connected diabetes mellitus aggravated the LLE neurological disorder? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of LLE disability present (i.e., a baseline) before the onset of the aggravation. 4. After the above is complete, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. The claim must be afforded expeditious treatment. _________________________________________________ M. E. LARKIN 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).