Citation Nr: 1304754 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 10-04 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a right leg disability, described as lower extremity peripheral neuropathy, to include as secondary to a right ankle disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from August 1984 to October 1984 with additional National Guard service indicated by the record. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran's notice of disagreement specifically referenced an April 2008 rating decision. However, such notice of disagreement was still timely as to an earlier November 2007 rating action. Thus, it is this earlier decision that is the rating on appeal. Indeed, this is most beneficial to the Veteran. In August 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. In February 2012, the Board granted service connection for nerve impairment to the right ankle. In addition, the issue of entitlement to service connection for a right leg disability to include peripheral neuropathy was remanded to the RO for additional development. Additional evidence was received following certification to the Board, including a March 2012 letter from L.G., D.O. This evidence has not yet been reviewed by the RO, and no waiver of AOJ jurisdiction was provided. However, as the appeal is being remanded the RO will have the opportunity to review this material prior to final appellate adjudication in this case. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. VA will notify the appellant if further action is required. REMAND Unfortunately, the Board finds that additional development is necessary in this case. The Veteran contends that he has a right leg disability which is either related to his in-service injury, is secondary to his service-connected back disability, or to his service-connected right ankle disability. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (b), added effective October 10, 2006, 71 Fed. Reg. 52744 -52747 (Sept. 7, 2006). The addition of 38 C.F.R. § 3.310(b) effective as of October 10, 2006, does not affect the consideration or the outcome of this case. This new paragraph was added to implement a decision of the United States Court of Appeals for Veterans Claims (Court) in the case of Allen v. Brown, 7 Vet. App. 439 (1995). The holding in that case has been binding on VA since it was issued in 1995. Thus, the regulatory provisions added by 38 C.F.R. § 3.310(b) simply conform VA regulations to the court's decision, the holding of which has been applicable during the entire period of this appeal. The Board notes that an earlier December 2009 VA examination provided an opinion regarding the etiology of a right leg disability (demyelinating peripheral neuropathy of the right lower extremity). However a peripheral nerve examination only addressed whether the current right lower extremity neuropathy was related to the service connected lower back disorder as the examiner found no evidence of a right ankle disorder. The examiner stated that the Veteran's demyelinating peripheral neuropathy of the right lower extremity is not likely related to his service-connected back condition. She did not indicate if the Veteran's demyelinating peripheral neuropathy of the right lower extremity was aggravated by his back disability. The December 2009 examination report is inadequate as it did not address whether the Veteran's right lower extremity peripheral neuropathy was aggravated by low back disability; or whether it was caused or aggravated by his right ankle disorder. The Board's prior February 2012 remand ordered a new VA examination to determine if the Veteran's service-connected right ankle disability or his service-connected back disability caused or aggravated his peripheral neuropathy of the right lower extremity. Likewise, the April 2012 VA examination was inadequate. The examiner only addressed whether the current right lower extremity neuropathy was related to the service connected right ankle disorder, or aggravated by it. The examiner entirely failed to address whether the Veteran's demyelinating peripheral neuropathy of the right lower extremity was related to or aggravated by his service-connected back disability. Remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The February 2012 remand directed the RO to afford the Veteran a new examination and to offer opinions as to whether there is a 50 percent or better probability that the Veteran has a current right leg disability which is related to active duty or has been caused or aggravated (permanently worsened beyond its natural progress) by his service-connected right ankle disability or his service-connected back disability. This was not done in the April 2012 VA examination. In accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. Id. Thus, the Board must remand for an addendum or an additional examination. Moreover, the additional evidence received in January 2013 should be considered by the VA examiner in formulating his opinion. Accordingly, the case is REMANDED for the following: 1. Request an addendum from the April 2012 examiner. If he is not available, schedule the Veteran for an additional VA examination to determine whether his current disability, specifically right lower extremity peripheral neuropathy, was aggravated by his service-connected low back or right ankle disabilities. The claims folder must be made available to and reviewed by the examiner in connection with the examination. Attention is called to new evidence submitted in January 2013, including a March 2012 medical opinion provided by L.G., D.O. All tests deemed necessary should be conducted. With respect to the Veteran's diagnosed right lower extremity peripheral neuropathy, the examiner should express an opinion as to whether it is more likely, less likely, or at least as likely as not that the disability has been permanently worsened beyond its natural progression by the Veteran's service-connected low back or right ankle disabilities. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. A rationale for any opinions must be provided. Moreover, the examiner should expressly comment on the opinion of L.G., D.O., dated in March 2012, in which it was found unlikely that diabetes would lead to such asymmetric numbness as experienced by the Veteran- this, in conjunction with nerve conduction studies failing to substantiate diabetic neuropathy, formed the basis for that individual's opinion that current right leg numbness was service-related. 2. After the development requested above has been completed to the extent possible, the record should again be reviewed. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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. 2012). ____________________________________________ ERIC S. LEBOFF 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) (2012).