Citation Nr: 1316986 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 06-33 496 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for peripheral neuropathy (PN) of the bilateral upper extremities as secondary to service-connected diabetes mellitus type II. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Donna D. Ebaugh, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2010 and October 2012, the Board remanded the matter for additional development. The case now returns for further appellate review. The Board notes that the issue listed on the title page was previously characterized as entitlement to service connection for peripheral neuropathy (PN) as secondary to service-connected diabetes mellitus type II. The general characterization of PN included the issues of PN of the bilateral upper and lower extremities. Indeed, service connection for PN was denied with respect to all upper and lower extremities in the April 2012 supplemental statement of the case (SSOC). Notably, service connection for PN of the bilateral lower extremities was granted in February 2013. As such is a full grant of the benefit sought on appeal regarding the bilateral lower extremities, this issue is no longer before the Board. Thus, the Board has recharacterized the issue to reflect the only remaining portion of the issue still on appeal (i.e., service connection for PN of the bilateral upper extremities). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. Such file includes VA medical records, dated to November 2012, which have not been considered by the agency of original jurisdiction (AOJ). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In this case, the Board finds that the agency of original jurisdiction (AOJ) did not comply with the October 2012 remand directives. Specifically, the October 2012 Remand directed that if any claim remained denied, the Veteran and his representative should be issued a SSOC. Here, however, the AOJ did not grant service connection for PN of the upper extremities and no SSOC was issued. As such, a remand for issuance of a SSOC is required. See Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). In the issuance of such SSOC, the AOJ should consider the VA treatment records recently associated with the Veteran's Virtual VA file. Additionally, the Board notes that, in accordance with the October 2012 Remand directives, the Veteran was afforded a VA examination in February 2013. At that time, the VA examiner determined that the Veteran did not have a current diagnosis of PN in either upper extremity. The examiner explained that the left upper extremity symptoms were due to left cubital syndrome, which is caused by local compression and not at least as likely as not due to diabetes mellitus. The examiner also noted that no evidence of diabetic neuropathy of the upper extremities was provided. However, a November 2007 VA outpatient treatment record indicated subjective complaints of cramping in both hands. As noted in the October 2012 Remand, a September 2007 VA treatment record assessed paresthesias that was most likely diabetic. Additionally, as noted in the October 2012 Remand, in a VA treatment record dated September 17, 2008, the VA primary care physician diagnosed PN and prescribed a trial of Elavil. As these treatment records did not expressly limit the Veteran's PN diagnosis to the lower extremities, the February 2013 VA examiner should address the records and offer an addendum opinion that considers the symptoms and diagnoses noted in the VA treatment records. As discussed in the October 2012 Remand, the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319 (2007). Accordingly, the case is REMANDED for the following action: 1. Provide the claims file and a copy of this remand to the February 2013 VA examiner for an addendum opinion. If the examiner is not available, an addendum opinion should be obtained from an appropriate examiner. The examination report should note that review of the claims file and this remand took place. The examiner is requested to provide an opinion, based on a review of the claims folder and utilizing sound medical principles, addressing whether any PN of the upper extremities diagnosed during the appeal period is at least as likely as not (50% or greater probability) caused or aggravated by the Veteran's service-connected diabetes mellitus. Specifically, the examiner must address the VA treatment records dated in 2007 and 2008, which include subjective complaints of bilateral hand cramping, diagnosis of PN, and description of paresthesias that is "most likely diabetic." All opinions expressed should be accompanied by supporting rationale in a legible report. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include all evidence associated with the paper or Virtual files since the issuance of the April 2012 SSOC. If the claim remains denied, the Veteran and his representative should be issued a SSOC. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ A. JAEGER 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).