Citation Nr: 1318199 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-36 994A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office )RO) in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension, including as secondary to service-connected Type II diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy, including as secondary to service-connected Type II diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from August 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Cleveland RO, that denied the above claims. 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 In an October 2009 statement associated with the Veteran's substantive appeal, he indicated that he did not want a Board hearing, but he did want a personal hearing provided he only had to drive a short distance. Otherwise, he did not want a hearing. In May 2010, another statement was received in which the Veteran stated he could not travel farther than Chillicothe for a personal hearing. Although the Veteran clearly expressed interest in a personal hearing, there is no indication in the file showing that he was scheduled for a hearing. The Veteran has a right to provide hearing testimony on appeal. See 38 U.S.C.A. § 7107(b) (West 2002); 38 C.F.R. § 20.700(a) (2012). In accordance with his request, the Veteran must be provided an opportunity to present testimony during a personal hearing. See 38 C.F.R. § 20.700. Regarding hypertension, the RO arranged for examinations to obtain opinions based on a new theory of entitlement. Unfortunately, these examinations are inadequate. Once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examinations of January 2008 and July 2009 did not address the aggravation component of secondary service connection claims. Service connection may be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Therefore, this matter must be remanded to obtain an adequate opinion. Regarding peripheral neuropathy, the record reflects uncertainty as to whether the Veteran has a diagnosis. The January 2008 VA examiner did not determine any sensory loss in the Veteran during the examination, but ordered an EMG. He indicated that it was possible the Veteran had peripheral neuropathy from diabetes but that this was completely dependent upon receiving positive results on a pending EMG test and that an addendum would be provided once the results were received. The record does not contain an addendum or findings of an EMG. When the Veteran was afforded a second VA examination in July 2009, the examiner stated that it appeared the Veteran had anxiety-like tremors that were equally distributed between the upper and lower extremities and that these tremors completely disappeared upon distraction. Because the symptoms strongly went along with functional or psychogenic tremors and that there was no clinical evidence of organic neuropathy of any kind, an EMG was felt unnecessary. The Veteran's tremors did not explain his complaints of numbness and tingling that he reported having in his upper and lower extremities. Furthermore, since the examiners had different opinions regarding the need for an EMG, he should be afforded the benefit-of-the-doubt and be scheduled for the test to determine if he had peripheral neuropathy. On remand, efforts should also be undertaken to ensure that the Veteran's complete VA treatment records are associated with the claims folder. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's complete treatment records from the Chillicothe VA treatment facility, dated from May 1968 to September 1990 and from May 2010 forward. 2. Schedule the Veteran for a personal hearing and notify him and his representative of the date and time of the hearing. 3. After the Veteran's treatment records have been obtained, schedule him for a VA neurological examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner. The Veteran must be scheduled for an EMG and the findings must be considered in determining whether the Veteran has peripheral neuropathy in the upper and lower extremities. If peripheral neuropathy is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had its clinical onset during active service or is related to any in-service disease, event, or injury, to include in-service herbicide exposure; OR, in the alternative, whether it is at least as likely as not (50 percent or greater probability) that it was caused OR aggravated by service-connected diabetes mellitus . The complete rationale for all opinions expressed should be set forth in the examination report. 4. Obtain an addendum opinion regarding the Veteran's hypertension. The claims file and a copy of this remand must be made available to and reviewed by the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension had its clinical onset during active service or is related to any in-service disease, event, or injury, to include in-service herbicide exposure; OR, in the alternative, whether it is at least as likely as not (50 percent or greater probability) that it was caused OR aggravated by service-connected diabetes mellitus . The complete rationale for all opinions expressed should be set forth in the examination report. 5. Next, review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, determine whether the examiners have responded to all questions posed. If not, the report(s) must be returned for corrective action. 6. Finally, readjudicate the claims based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ P. M. DILORENZO 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).