Citation Nr: 1318787 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 07-17 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for diabetes mellitus as secondary to hypertension. 2. Entitlement to service connection for neuropathy of the right hand as secondary to service-connected right shoulder arthritis. 3. Entitlement to service connection for neuropathy of the left hand as secondary to service-connected left shoulder arthritis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active military service from March 1968 to March 1988. This matter comes to the Board of Veterans' Appeals (Board) from a July 2006 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for neuropathy of the hands and for diabetes mellitus. In a decision dated in February 2011, the Board denied service connection for diabetes mellitus and neuropathy of the hands on the bases of direct service incurrence, legal presumptions, and as due to herbicide exposure. The Board also remanded the issues of service connection for diabetes mellitus as secondary to service-connected hypertension, and for neuropathy of the hands as secondary to service-connected arthritis of both shoulders for development. The development having been accomplished, the appeal has been returned to the Board for consideration of the limited issues as set forth on the title page. 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 As noted above, the only remaining matters on appeal are based on the theories of entitlement involving secondary service connection. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection may also be established for a nonservice-connected disorder which is aggravated by a service-connected disability (i.e., there is an additional increment of disability of the nonservice-connected condition which is proximately due to or the result of a service-connected disorder). See Allen v. Brown, 8 Vet. App. 374 (1995). During the pendency of this appeal, VA amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, in permitting secondary service connection on the basis of aggravation, but limiting the circumstances under which it will grant secondary service connection on the basis of aggravation. 71 Fed. Reg. 52,744-52,747 (Sep. 7, 2006). In particular, aggravation will not be conceded unless a baseline for the claimed disability can be established with medical evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). Although the secondary theories of entitlement were not raised until after the effective date of the revisions, multiple theories of entitlement pertaining to the same benefit for the same disability constitute the same claim. Roebuck v. Nicholson, 20 Vet. App. 307 (2006). Therefore, since the Veteran's claim was pending prior to the effective date of the changes, the more liberal version of 38 C.F.R. § 3.310, as interpreted in Allen, is for application. See Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008) (if a rule or regulation appears to have a retroactive effect, then the rule or regulation cannot be applied to cases pending at the time of its promulgation). Here, the Board finds that examinations are needed to determine whether the claimed conditions are secondary to service-connected disabilities. In this regard, the Veteran was afforded a VA examination in July 2009, to determine the etiology of neuropathy of the hands. The examiner, however, found that neuropathy of the hands was not present, and so did not offer an opinion. Nevertheless, the requirement of a current disability is satisfied if the claimant has the disability at any time during the pendency of the claim. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, after the claim was received, a VA examination was provided in June 2005, which resulted in a diagnosis of bilateral shoulder arthritis with accompanying left neurogenic thoracic outlet syndrome. This was based on symptoms which included intensified numbness and tingling in the left hand when the examiner pressed the left supraclavicular space. Earlier private medical records show that in 1998 the Veteran was in a motor vehicle accident, and after that, had some symptoms of cervical radiculopathy which affected the upper extremities. However, in January and February 2001, he was also noted to have, separate from that, impingement of the left shoulder, with symptoms including numbness of the left hand. On a VA examination for evaluation of the Veteran's bilateral shoulder disability in December 2011, a Hawkins' impingement test was noted to be positive, as was a lift-off subcapsularis test. The examination report did not indicate whether symptoms involved the hands, however. Given these factors, the Veteran must be afforded a VA examination to determine whether he has neuropathic symptoms involving either or both hands due to or aggravated by his service-connected bilateral shoulder condition. The Board also finds that an examination is warranted as to whether diabetes mellitus was caused or aggravated by service-connected hypertension. Before the examinations, additional evidence should be associated with the claims file. Specifically, according to a May 2013 rating decision located in Virtual VA, a VA Form 21-4138 Statement in Support of Claim, with attached treatment record from Dr. Lambert, was received December 28, 2012. In addition, treatment reports from Dr. Lambert, dated from July 21, 2008 through February 19, 2013, were also received. The records themselves were not attached to Virtual VA, but they were obtained in connection with claims for increased ratings for bilateral shoulder arthritis and hypertension, and, thus, may be relevant to the claims on appeal. Accordingly, the case is REMANDED for the following action: 1. Associate the VA Form 21-4138 Statement in Support of Claim, with attached treatment record from Dr. Lambert, received December 28, 2012, and treatment reports from Dr. Lambert, dated from July 21, 2008, through February 19, 2013, and received at the Seattle RO, with the claims file. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's diabetes mellitus is proximately due to or the result of service-connected hypertension. In addition, the opinion should address whether it is at least as likely as not that diabetes mellitus was aggravated (permanently worsened) by service-connected hypertension. The claims files must be available to the examiner in conjunction with the examination. A rational for the opinion must be included. 3. Schedule the Veteran for an appropriate VA examination to determine whether he has (or had at any time between April 2005 and the present) neuropathic symptoms in his right and/or left hands which were at least as likely as not caused or worsened by service-connected bilateral shoulder arthritis. The examiner should review the evidence of impingement (including Federal Way Orthopedic Associates records dated in January 2001, and VA examination in December 2011) and the evidence of neurogenic thoracic outlet syndrome noted on an October 2005 VA examination. The claims files must be available to the examiner in conjunction with the examination. A rationale for the opinion must be included. 4. After completion of the above and any additional development deemed necessary, adjudicate the claims for service connection for diabetes mellitus, as secondary to hypertension, for neuropathy of the right hand as secondary to right shoulder arthritis, and for neuropathy of the left hand as secondary to left shoulder arthritis. The claims should be adjudicated on the basis of secondary service connection ONLY, to include secondary service connection by aggravation of a service-connected disability, and if any claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, and afforded an opportunity to respond, before the case is 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). _________________________________________________ Michael J. Skaltsounis Acting 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).