Citation Nr: 1318543 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 05-14 195A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a disability manifested by numbness of the lower extremities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Peters, Associate Counsel REMAND The Veteran had active duty service from June 1985 to July 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this case in October 2012 in order to obtain VA treatment records, particularly since September 2012, and an addendum opinion from a February 2012 VA examiner, which addressed three questions. The Board notes that VA treatment records through April 2013 have been obtained and associated with the Veteran's Virtual VA efolder. The VA examiner submitted an addendum opinion addressing the three questions presented in February 2013. The agency of original jurisdiction (AOJ) again denied the Veteran's claim by way of an April 2013 supplemental statement of the case. After the April 2013 supplemental statement of the case, the Board received an electromyography (EMG) dated in March 2013 from the Veteran; such study was performed by VA at the Memphis VA Medical Center. The March 2013 report notes that the findings of that study were: indicative of lumbosacral radiculopathy. However, the localization of nerve root cannot be determined due to the lack of active denervation in the bilateral lower extremity myotomes. The clinic correlation is recommended. . . . Normal sural and superficial sensory nerve studies are electrophysiological evidence against the diagnosis of polyneuropathy. In the February 2013 addendum opinion, the examiner opined that the Veteran's neurological condition was "most likely diabetic." However, it would appear that the March 2013 EMG findings contradict that conclusion, and a clarification of such must necessarily be sought. Moreover, as the Veteran's representative pointed out in his May 2013 brief on appeal, the Veteran had been complaining of his neurological condition prior to the onset of his diabetes and that fact was not discussed in the addendum opinion. Furthermore, in an accompanying statement with the March 2013 EMG study in April 2013, the Veteran stated that he did indeed have erectile dysfunction since around February 2006, when VA prescribed him Viagra and Levitra. Such statements contradict the VA examiner's rationale and undermines the reasoning provided for the first of the three questions addressed in the addendum. The Board additionally notes that these deficiencies are carried through to the conclusion reached in response to question 2, which conclusion noted that the diabetic neuropathy was not caused by the Veteran's mechanical back pain. In light of these concerns, the Board finds that the addendum opinion does not resolve the matter. Therefore, a remand for an entirely new VA examination is necessary at this time in order to clarify the current nature and etiological basis of the Veteran's claimed neurologic condition. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Records of ongoing VA treatment should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); 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 any relevant VA treatment records from the Memphis VA Medical Center, or any other VA medical facility that has treated the Veteran, since April 2013 and associate those documents with the claims file. 2. Thereafter, schedule the Veteran for a VA neurological examination in order to determine the nature and etiology of any neurological disorder of his lower extremities. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted. The March 2013 report of electromyography should be specifically considered. After review of the claims file and examination of the Veteran, the examiner should discuss the following: (a) Does the Veteran experience any neurologic disorder affecting the lower extremities, such as peripheral neuropathy, radiculopathy, or any focal lesion? The examiner should specifically discuss the VA examination from February 2012, the February 2013 addendum, and the March 2013 EMG study results, as well as any of his/her own findings. The examiner should discuss the Veteran's VA treatment records and examination reports and reconcile the varied findings and conclusions. The examiner should provide a definite opinion regarding the nature and cause of any numbness of the lower extremities. (b) For each neurological disorder identified, the examiner should opine whether such disorder more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or was otherwise the result of military service? The examiner should specifically discuss the Veteran's complaints of numbness in his right buttock and thigh noted in the Medical Evaluation Board report in April 1990. (c) Then, the examiner should opine whether each neurological disorder is more likely, less likely, or at least as likely as not caused by the Veteran's service-connected low back disability? The examiner should specifically discuss the Veteran's lay contentions as well as the March 2013 EMG findings noting a potential relationship between the two. The examiner should additionally discuss the February 2013 addendum opinion which related the Veteran's neurological symptoms to his diabetes, but did not address the Veteran's statements that such symptoms were present prior to onset of diabetes. (d) Finally, the examiner should also opine as to whether the Veteran's service-connected low back disability aggravates (e.g., permanently worsens beyond the normal progression of that disease) any neurological disorder affecting the lower extremities. All opinions must be accompanied by an explanation. The medical reasons for accepting or rejecting the Veteran's reports of continuity of symptoms should be set forth in detail. 3. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim of service connection for a disability manifested by numbness of the lower extremities. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is 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 case 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). _______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).