Citation Nr: 1312690 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-33 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for sensory motor polyneuropathy of the extremities. 2. Entitlement to an initial rating higher than 10 percent for partial simple seizures. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and interpreter ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from May 1987 to July 2007. This matter comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection and assigned a 10 percent rating for partial simple seizures and denied service connection for sensory motor polyneuropathy. The issue of entitlement to an increased rating for partial simple seizure is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's sensory motor polyneuropathy had its onset in service. CONCLUSION OF LAW Sensory motor polyneuropathy was incurred in or aggravated by the Veteran's active duty military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for sensory motor polyneuropathy herein constitutes a complete grant of the benefit sought on appeal for those issues, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For claims that are considered to be chronic in service, continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. For claims for conditions that are not shown to be chronic in service or at not considered to be presumptively chronic, credible lay evidence may establish the third element of service connection. The Veteran contends that his current polyneuropathy was first diagnosed while in service and was noted on separation examination. He contends that he has received continuous treatment for neuropathic symptoms since separation from service. Service treatment records reflect that on June 2006 retirement examination, it was noted that the Veteran suffered from idiopathic neuropathies. A November 2006 record noted the diagnosis of polyneuropathy. A nerve conduction study had revealed the presence of sensory motor polyneuropathy. A May 2007 record reflects the diagnosis of idiopathic neuropathies. He was being treated by a civilian doctor who had at first diagnosed restless leg syndrome but had changed the diagnosis to neuropathy of the hands, legs, and feet. He was using Gabapentin for relief. Post-service treatment records reflect that on January 2010 VA examination, the examiner reviewed the service treatment records evidencing a diagnosis of polyneuropathy. The examiner also reviewed a May 2008, post-service note from the Veteran's neurologist stating that he was under her continuing care for polyneuropathy. The Veteran reported symptoms of burning feet, pins and needles, swelling, and electric shock-like pain in the upper and lower extremities. Physical examination revealed decreased sensory examination in all four extremities. The diagnosis was median entrapment neuropathy in the upper extremities and polyneuropathy of the lower extremities. The examiner noted that the Veteran's neuropathy in all extremities was identified on active duty and that the diagnosis was confirmed while on active duty. The symptoms had persisted since then and were present on physical examination. In this case, the Board finds that the Veteran was clearly diagnosed with neuropathy of the bilateral upper and lower extremities while on active duty and that the neuropathy has continued following service. The 2010 VA examiner found that the Veteran's neuropathy was the same as his diagnosis in service with no change. Therefore, the Board can only conclude that the Veteran's current neuropathy was caused or aggravated by his service, as it had its onset in service, and thus service connection for neuropathy of the extremities is warranted. ORDER Service connection for neuropathy of the extremities is granted. REMAND Additional development is necessary prior to further disposition of the claim for increased rating for a seizure disorder. The Veteran contends that he experiences at least two major seizures per year, and two minor seizures monthly, such that a higher rating is warranted. In this case, the most recent VA examination to assess the Veteran's seizures disorder was conducted in April 2008 and is thus remote. At his 2012 hearing before the Board, the Veteran stated that he had received emergency medical treatment in 2010 for his seizures. However, those records are not in the claims file. Therefore, a new VA examination should be obtained to determine the current severity of the Veteran's seizure disorder and to obtain more recent VA and private medical records evidencing treatment for seizures. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any outstanding treatment records relevant to his claim for increased rating for a seizure disorder. After securing any necessary authorization from him, obtain all identified treatment records, as well as any available VA treatment records not already of record. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran of the attempts made. 2. Schedule the Veteran for a VA examination to assess the current severity of his seizure disorder, to include the character and frequency of i) major and ii) minor seizures. The examiner should review the claims file and note that review. All opinions expressed should be clearly explained. 3. Then, readjudicate the claim. If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs