Citation Nr: 1318399 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-42 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the lower extremities. 2. Entitlement to service connection for peripheral neuropathy of the upper extremities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from October 1963 to October 1966 and from October 1969 to February 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction of the claim currently resides with the RO in Winston-Salem, North Carolina. Although in his October 2009 VA Form 9 the Veteran requested a Board hearing, in a statement received by VA in January 2010, the Veteran indicated that he did not wish to have a Board hearing. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (9d), (e) (2012). 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 The Veteran claims that service connection is warranted for peripheral neuropathy of the upper and lower extremities because it is secondary to his service-connected diabetes mellitus. In March 2008 the Veteran underwent a VA examination in conjunction with his claim. The VA examiner indicated that there was no objective or subjective evidence of neuropathy in the hands. The examiner further opined that the Veteran's peripheral neuropathy of the lower extremities is not caused by or the result of his service-connected diabetes mellitus type II. Service connection may be established on a secondary basis for a disability, which is proximately due to, or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown , 7 Vet. App. 439, 448 (1995). Unfortunately, there is no medical opinion as to whether the Veteran's peripheral neuropathy of the lower extremities is aggravated by the service-connected diabetes mellitus. 38 C.F.R. § 3.310(a); Allen v. Brown , 7 Vet. App. 439 (1995). Therefore, the March 2008 VA examination report is inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one). Consequently, a remand is required in order to obtain an opinion regarding aggravation in this regard. With respect to the Veteran's claim for service connection for peripheral neuropathy of the upper extremities, there is conflicting evidence of record regarding whether the Veteran has such a diagnosis. Notably, a December 2007 VA neurology consult reflects that the Veteran complained of peripheral sensory neuropathy symptoms. He complained of pain in his hands, elbows, feet, and knees. Motor examination revealed full strength in the upper extremities, and normal muscle tone and bulk. He had reduced sensory examination in terms of pinprick and temperature in a glove and stocking distribution bilaterally. The diagnosis was peripheral neuropathy. A February 2008 letter from a private physician, Dr. Mayers, notes that the Veteran has a diagnosis of peripheral neuropathy. The March 2008 VA examination report notes that the Veteran complained of numbness, burning, and tingling in his hands. Examination revealed normal strength in the upper extremities and normal sensory function report in terms of vibration, pain, light touch, and position sense for the upper extremities. Reflexes were absent at the biceps and otherwise full for the upper extremities. There was no muscle atrophy, abnormal muscle tone or bulk, or tremors, tics or other abnormal movements. As previously noted, the VA examiner indicated that there was no subjective or objective evidence of neuropathy in the hands. While the Board recognizes that the VA treatment records and the private medical evidence reflect a general diagnosis of peripheral neuropathy, those findings are not specific as to the extremities affected. However, importantly, the December 2007 neurology consult simultaneously reflects that the Veteran had reduced sensory pinprick and temperature in a glove and stocking distribution bilaterally. The Board also notes that the March 2008 VA examiner did not conduct any nerve conduction studies, nor did the examiner perform electromyography, but found normal sensory function report in the upper extremities in terms of vibration, pain, light touch, and position sense. Because the December 2007 VA neurology consult reflects abnormal sensory exam of the upper extremities and a diagnosis of peripheral neuropathy generally, because the March 2008 VA examiner did not reconcile the abnormal sensory findings and general diagnosis of peripheral neuropathy in December 2007 with the normal findings at the March 2008 VA examination, and because the March 2008 VA examiner neither performed electropmyography nor conducted any nerve conduction studies, the Board finds that a remand is required for another VA examination to clarify the Veteran's diagnosis with respect to the upper extremities. The Board further notes that when determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Because the claim is being remanded for another VA examination and because the record reflects that the Veteran served in Vietnam during the Vietnam War era, the Board finds that an opinion should also be obtained regarding whether the Veteran's peripheral neuropathy is related to service, to include exposure to Agent Orange. Ongoing VA treatment records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all VA treatment records dating from January 2011 to the present and associate them with the claims file. 2. Schedule the Veteran for a VA neurology examination. The examiner is requested to determine whether peripheral neuropathy of the upper extremities is present, and if so, the etiology of such, as well as the etiology of the Veteran's peripheral neuropathy of the lower extremities. All necessary tests, to include electromyography and/or nerve conduction studies, should be performed. The claims folder must be made available to the examiner in conjunction with the examination. The examiner must consider all evidence of record, to include the VA neurology consult dated in December 2007, the February 2008 private physician's letter, and the March 2008 VA examination report. The examiner must provide the following opinions: Rule in or rule out a diagnosis of peripheral neuropathy of the upper extremities. In doing so, the examiner should consider the December 2007 abnormal sensory findings (stocking and glove distribution) and general diagnosis of peripheral neuropathy. Whether it is at least as likely as not that any such peripheral neuropathy of the upper extremities is due to, or aggravated by (permanently worsened beyond normal progression of the disorder), the Veteran's service-connected diabetes mellitus. Whether it is at least as likely as not that the peripheral neuropathy of the lower extremities is aggravated (permanently worsened beyond normal progression of the disorder) by the Veteran's service-connected diabetes mellitus. The examiner must also opine as to whether it is at least as likely as not that any peripheral neuropathy of the upper and/or lower extremities is related to his service, to include his conceded exposure to herbicides. The rationale for all opinions offered must be provided. 3. After completing the above actions, and any other development as may be indicated, the claims must be readjudicated. If any benefit sought remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). _________________________________________________ U. R. POWELL 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).