Citation Nr: 1319882 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 09-49 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity. 2. Entitlement to an evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board observes that the Veteran's appeal had also included entitlement to an increased evaluation for diabetes mellitus. However, the Veteran has not submitted a substantive appeal following the issuance of the February 2010 statement of the case. See 38 C.F.R. § 20.202. Accordingly, that issue no longer remains in appellate status, and no further consideration is required. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. No new records pertinent to this appeal were found therein. 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 law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. In this case, the Veteran appears to have numerous symptoms affecting his legs, but the evidence is unclear as to which symptoms are attributable to his service-connected peripheral neuropathy of the bilateral lower extremities. For example, during a June 2009 VA examination, the Veteran complained of an inability to walk distances because of cramps in his legs. He indicated that he could only walk 25 to 50 yards before having to stop and rest due to cramping claudication. On examination, no pulses were noted in the dorsalis pedis or posterior tibial areas, and there were weakened pulses in the popliteal areas. Bruits were noted on both sides of the femoral ankles. There was decreased vibratory sensation noted in both feet, and there were no ankle reflexes bilaterally. Pinprick sensation was decreased in both feet, and there was a slight decrease in soft touch sensation. Deep tendon reflexes were decreased in both knees. The examiner diagnosed the Veteran with both peripheral vascular disease of the legs and diabetic neuropathy of the legs. The examiner determined that the Veteran's peripheral vascular disease is most likely the main cause of the claudication and walking problems, although he stated that the degree of effects from neuropathy versus peripheral vascular disease would require speculation. The examiner found the diabetic neuropathy was less likely than not severe enough to cause the claudication pains that prevented the Veteran from walking distances and working in his usual occupation. The examiner conceded that the Veteran had "some" bilateral lower extremity diabetic neuropathy. Moreover, the June 2009 VA examiner did not opine as to whether the neurological findings made on examination, such as the absence of pulses in the dorsalis pedis and posterior tibial areas, weakened pulses in the popliteal areas, decreased vibratory sensation, decreased pinprick sensation, decrease in soft touch sensation, absence of ankle reflexes bilaterally, and decrease in deep tendon reflexes of the knees bilaterally, were attributable to the Veteran's service-connected peripheral neuropathy or his nonservice-connected peripheral vascular disease. Similarly, a February 2009 VA examination had revealed loss of strength and tingling/numbness. The Veteran was noted as having neuritis and decreased strength in his left leg, as well as neuritis of the right leg. He had no dorsalis pedis pulse, posterior tibial pulse, orAchilles reflexes. He also had an abnormal pinprick sensation. The examiner indicated that the Veteran's peripheral neuropathy and vascular disease were both related to diabetes; however, he did not identify which symptoms were attributable to the service-connected peripheral neuropathy. Based on the foregoing, it is unclear from the evidence as to which symptoms are manifestations of the Veteran's service-connected peripheral neuropathy of the lower extremities as opposed to a nonservice-connected disorder. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that an additional VA examination is necessary to ascertain the current severity and manifestations of the Veteran's service-connected peripheral neuropathy of the lower extremities. In addition, the record shows that the Veteran has been receiving treatment at the Dallas VA Medical Center (VAMC) and the Fort Worth Outpatient Clinic. While the claims file includes treatment records dated though October 2009 from Dallas, and December 2009 from Fort Worth, more recent treatment records may now be available. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, on remand, an attempt should be made to obtain any outstanding VA medical records. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his peripheral neuropathy of the lower extremities. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. The RO/AMC should also obtain any outstanding VA treatment records dated since October 2009, including from the Dallas VA Medical Center (VAMC) and the Fort Worth Outpatient Clinic. 2. The Veteran should be afforded a VA neurological examination to ascertain the current severity and manifestations of his service-connected diabetic peripheral neuropathy of the bilateral lower extremities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected diabetic peripheral neuropathy. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's disabilities under the rating criteria. Specifically, the examiner is requested to determine whether there is incomplete paralysis of the involved nerve(s). If so, the examiner should indicate whether the severity is mild, moderate, moderately severe, or severe with marked muscular dystrophy. The examiner should also state whether the Veteran has complete paralysis with foot dangles and drops, no active movement possible of the muscles below the knee, and flexion of the knee weakened or lost. In so doing, the examiner should identify which lower extremity symptoms are attributable to the Veteran's service-connected peripheral neuropathy of the lower extremities, as opposed to a nonservice-connected disorder, such as peripheral vascular disease. If it is not possible to differentiate the symptoms, the examiner should state so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important that each disability be viewed in relation to its history, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After the development requested has been completed, the RO/AMC should review the examination report to ensure that it is in compliance with the directives of this REMAND. If the report is deficient in any manner, the RO/AMC should implement corrective procedures. 4. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted, the appellant and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). _________________________________________________ JESSICA J. WILLS 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).