Citation Nr: 1312365 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-48 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for peripheral neuropathy, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to February 1970, with confirmed service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. 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 Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). In April 2009 the Veteran was afforded a VA examination. Although the examiner took a history from the Veteran, the examination report indicates on the first page that the claims file was not available for review by the examiner, who ultimately rendered a negative etiological opinion. Notably, on the November 2010 Statement of the Case (SOC) the RO incorrectly noted that the claims file had been reviewed by the examiner. Accordingly, the Board finds that the examination report is inadequate to decide the present claim and it must therefore be returned. 38 C.F.R. § 4.2. In addition, as the Veteran receives medical care through VA, medical records since November 2010 should be associated with the record. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record). Accordingly, the case is REMANDED for the following action: 1. Obtain VA medical records pertaining to the Veteran that date from November 2010. 2. Refer the claims folder to the examiner who performed the April 2009 examination (if available) to obtain an addendum opinion as to the etiology of the Veteran's claimed peripheral neuropathy. The examiner is asked to review the April 2009 examination report in conjunction with the claims file and offer an opinion on whether it is at least as likely as not (i.e., probability greater than 50 percent) that peripheral neuropathy had its onset during his period of active service from or is otherwise related to service, including as due to presumed exposure to herbicides. If the examiner who performed the April 2009 examination finds that another examination is necessary or is unavailable to complete this addendum, the claims file should be provided to another appropriate examiner. The claims folder must be made available to the examiner for review in conjunction with the addendum or examination. All opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. After the development directed above has been completed to the extent possible, readjudicate the issue on appeal. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. 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. 2012). _________________________________________________ S. S. TOTH 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).