Citation Nr: 1324889 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 10-07 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for peripheral neuropathy of both upper extremities, to include as secondary to service-connected type II diabetes mellitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1969 to February 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran also initiated an appeal in the matter of the ratings for peripheral neuropathy of the lower extremities. A subsequent rating decision granted a staged increased (to 10 percent, each) rating. effective September 1, 2010, and a statement of the case (SOC) in the matter was issued in November 2010. The Veteran did not thereafter perfect an appeal by submitting a substantive appeal in the matter. Therefore, the matter of the rating for peripheral neuropathy of the lower extremities is not before the Board. The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5013A, 5106, 5107, 5126 and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to these claims. See 38 C.F.R. § 3.159. The Veteran asserts that he has developed numbness and tingling in both hands secondary to his service-connected diabetes mellitus. [It is not shown or alleged that peripheral neuropathy of the upper extremities was manifested in, or is directly related to, the Veteran's service.] His theory of entitlement is strictly one of secondary service connection. The question of whether or not a service-connected disability is a causative factor for peripheral neuropathy is one that is inherently medical in nature. On December 2008 VA examination, mild peripheral neuropathy with occasional numbness changes was diagnosed. The examiner opined that this was less likely than not related to the Veteran's diabetes. Secondary service connection is warranted for a disability that was caused or aggravated by a service-connected disability; any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability may be service connected. Governing law/caselaw provide that when adjudicating a secondary service connection claim VA must address the aggravation aspect of such claim. Furthermore, adjudicators may not rely on their own medical knowledge. Because the December 2008 examiner did not address whether the Veteran's service-connected diabetes mellitus has aggravated his peripheral neuropathy and also did not provide a rationale for his opinion that diabetes did not cause the peripheral neuropathy, the examination report (nexus opinion) is inadequate for rating purposes; and a remand to secure another medical advisory opinion in the matter is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following: 1. The RO should secure for the record copies of completed updated (i.e., any not already associated with the record) clinical records of treatment the Veteran has received for upper extremity peripheral neuropathy. 2. The RO should thereafter arrange for the Veteran to be examined by a neurologist to determine the nature and likely etiology of his peripheral neuropathy of the bilateral upper extremities. The examiner must review the entire record in conjunction with the examination, and any studies indicated should be completed. Based on review of the record and examination of the Veteran (to include any diagnostic studies indicated), the examiner should provide an opinion that responds to the following: What is the likely etiology for the Veteran's peripheral neuropathy of the upper extremities? Specifically, is it at least as likely as not (a 50 percent or greater probability) that any upper extremity peripheral neuropathy was either caused or aggravated by (increased in severity due to) his service-connected diabetes mellitus? If the peripheral neuropathy is determined to be unrelated to diabetes, please identify the etiology considered more likely. If the opinion is to the effect that the diabetes mellitus did not cause, but aggravated, the peripheral neuropathy, the examiner should identify, to the extent possible, the degree of disability (pathology/impairment) that is due to such aggravation. The examiner must explain the rationale for all opinions, citing to supporting factual data/medical literature, as deemed indicated. 3. The RO should then review the record and readjudicate the claim on appeal. If it remains denied, the RO should issue an appropriate supplemental SOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. 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 claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ GEORGE R. SENYK 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).