Citation Nr: 1308908 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 04-21 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the hands and feet, to include as secondary to service-connected disability. 2. Entitlement to an evaluation in excess of 10 percent for bilateral hearing loss WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from April 1970 to January 972. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In June 2005, the Veteran provided testimony at a videoconference hearing before the undersigned Veterans Law Judge. A complete transcript of the proceeding is of record. In January 2006, the Board granted service connection for bilateral hearing loss and remanded the issues of entitlement to service connection for peripheral neuropathy of the hands and feet, entitlement to service connection for posttraumatic stress disorder, and entitlement to service connection for coronary artery disease. While the case was in remand status, service connection was granted for posttraumatic stress disorder and for ischemic heart disease. In February 2012 the Veteran was provided a Statement of the Case addressing a number of new issues. In the cover letter sent with the Statement of the Case, the Veteran was informed of the requirement that he submit a formal appeal to perfect his appeal with respect to the new issues. The record does not reflect that he has done so. Moreover, the additional issues have not been certified for appellate consideration. Accordingly, those issues are not properly before the Board at this time. The issues of entitlement to increased ratings for disabilities secondary to service connected cancer (see representative's letter of October 2008) and entitlement to service connection for a gastrointestinal disorder (see representative's letter of February 2009) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. REMAND During the course of this appeal, the Veteran was granted service connection for a heart disorder. In a February 2011 statement, his then representative indicated that the Veteran was also claiming that service connection is warranted for his peripheral neuropathy as secondary to his heart disorder. The AOJ did not adjudicate this alternative theory of entitlement and the matter must be remanded. As such, a remand is necessary to allow for proper development and adjudication by the AOJ of the claim on a secondary basis. In light of this additional theory of entitlement, the Veteran should also be informed of what evidence and information is needed to substantiate this alternate theory of entitlement. In light of the Veteran's contentions and the state of the record, the Board finds that a remand is also necessary to afford the Veteran another VA examination to obtain a medical opinion that addresses the question of etiology on a basis of secondary service connection. The Board feels that the Veteran should be examined by a VA physician to address this matter. In December 2007, the RO granted a 10 percent evaluation for bilateral hearing loss after the Veteran requested a higher rating in August 2007. In November 2008, the Veteran's representative at that time submitted a notice of disagreement to that decision. A Statement of the Case (SOC) has not been issued. Where an SOC has not been provided following the timely filing of a notice of disagreement, a remand is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Issue an SOC to the Veteran addressing the issue of entitlement to an evaluation in excess of 10 percent for bilateral hearing loss and inform the Veteran of the requirements to perfect an appeal with respect to this new issue. If the Veteran perfects an appeal with respect to this issue, the RO or the AMC should ensure that all indicated development is completed before the case is returned to the Board for further appellate action. 2. The RO/AMC should inform the Veteran of the information and evidence needed to substantiate the claim for service connection for peripheral neuropathy on a secondary basis, the evidence that he should submit and the assistance VA will provide to obtain evidence on his behalf. 3. The RO/AMC should undertake appropriate development to obtain any outstanding evidence pertinent to the Veteran's claim for service connection for peripheral neuropathy. 4. Then, afford the Veteran a VA examination by a physician with sufficient expertise to determine the etiology of the Veteran's peripheral neuropathy. Any diagnostic testing or evaluation deemed necessary should be performed. All findings should be reported in detail. The claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders must be made available to and reviewed by the examiner. The examiner should opine as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's peripheral neuropathy is related to his military service or was caused or permanently worsened by his service-connected heart disorder. The examiner must provide a rationale for each opinion expressed. If an opinion cannot be provided without resorting to speculation, it should so be stated and a rationale for why not should be provided. 5. Undertake any other indicated development. 6. Then, the claim should be readjudicated. If any benefit sought is not granted to the Veteran's satisfaction, the Veteran should be furnished a supplemental statement of the case and be provided the requisite opportunity to respond before the claims folders are returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). _________________________________________________ Shane A. Durkin 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).