Citation Nr: 1317533 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 10-00 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from March 1963 to February 1968, with service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia In December 2012 the Board remanded the claim for further development which has not been completed. The Veteran's virtual VA file has been reviewed. 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 Remand for further development is required. The December 2012 Board remand requested a VA examination to determine whether the Veteran's peripheral neuropathy of the lower extremities was due to or aggravated by diabetes mellitus. In February 2013 a VA examination was conducted, however the examiner found that the Veteran did not have peripheral neuropathy of the lower extremities and had never been diagnosed with peripheral neuropathy before. Although the examiner stated that the claims file was reviewed, the examiner failed to address the numerous diagnosis of peripheral neuropathy in the record, to include a May 2005 private examination consult, a December 2008 VA nerves examination and multiple VA treatment notes all of which diagnosed peripheral neuropathy. It does not appear that a neurologic or strength examination was conducted. Instead the examiner stated that the Veteran's symptoms were due to his arteriosclerosis for which he is service connected. (The Veteran is separately service connected for peripheral vascular disease of bilateral lower extremities.) The February 2013 examination is inadequate. An inadequate examination frustrates judicial review. Hicks v. Brown, 8 Vet. App. 417, 422 (1995). Once VA provides an examination in a service connection claim, the examination 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). The examiner also noted that the Veteran was scheduled for a revascularization procedure on the right lower extremity on February 14, 2013, two days after the examination. A new examination to assess the Veteran's current condition is required. The Virtual VA eFolder contains treatment records through January 2013 but none post surgery, therefore updated treatment records are also necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file updated VA treatment records from January 2013 to present. 2. Following the above, schedule an appropriate VA examination to assess peripheral neuropathy of the lower extremities. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is asked to provide an opinion on the following: (a) whether or not there is a diagnosis of bilateral peripheral neuropathy. The examiner must address the prior diagnoses of peripheral neuropathy in the claims file, to include but not limited to a May 2005 private examination consult, a December 2008 nerves examination and numerous assessments in VA treatment records. (b) whether it is at least as likely as not that the Veteran's bilateral peripheral neuropathy is related to service, was caused or permanently worsened by the service connected diabetes mellitus. 3. Following completion of the above, readjudicate the claim. If the benefits sought on appeal are not granted, issue a supplemental statement of the case and afford an appropriate amount of time for the Veteran and his representative to respond. Thereafter, the case should be returned to the Board. The appellant 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 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). _________________________________________________ MARK W. GREENSTREET 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).