Citation Nr: 1325189 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 03-29 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for polyneuropathy, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Tabitha G. Macko, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to March 1972. In addition, he served in the U.S. Army reserves until April 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 decision rendered by the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO denied reopening a claim of entitlement to service connection for polyneuropathy. In May 2006, the Board reopened the claim and remanded the matter to the RO for additional development. Thereafter, the Board remanded the matter in September 2008 and in May 2010. In a May 2012 decision, the Board denied the Veteran's claim for service connection for polyneuropathy, to include as secondary to service-connected diabetes mellitus. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a September 2012 order, the Court granted a joint motion and remanded the appeal for further adjudication. The issue of entitlement to non-service-connected pension benefits (see Board's May 2010 remand) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Pursuant to the joint motion, the Board finds that further development is necessary on the claim on appeal. In the Joint Motion for Remand, the Veteran and the Secretary of VA (parties) determined that the August 2010 VA examination opinion, as to whether the service-connected diabetes mellitus disability caused or aggravated the claimed polyneuropathy, was insufficient, because the examiner had not provided a sufficient rationale for the conclusion. Where VA provides a veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Secondary service connection may be granted where a disability is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). The claims file will be returned to the same examiner who provided the March 2009 VA examination and the August 2010 addendum opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain the current VA treatment records from the VA facility in Shreveport, Louisiana, from March 2009 to present that pertain to polyneuropathy and diabetes mellitus, and include them in the claims file, either in paper form or electronically. 2. After the updated treatment reports have been included in the claims file, then obtain an addendum opinion regarding the etiology of the Veteran's polyneuropathy from the same VA examiner who conducted the March 2009 VA examination and provided the August 2010 addendum opinion. If the examiner determines that a new examination is required, one must be conducted. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion (the conclusion that an opinion cannot be provided without resorting to speculation). The March 2009/August 2010 examiner is asked to answer the following questions: (i) In August 2010, you concluded that polyneuropathy was not permanently aggravated by the Veteran's diabetes mellitus. Can you further explain why the Veteran's glucose levels and control of his diabetes mellitus lead you to the conclusion that polyneuropathy is not aggravated by his diabetes mellitus? (ii) In the event that your August 2010 conclusion has changed, if you believe that the polyneuropathy is permanently aggravated by the Veteran's diabetes mellitus, please explain why. 3. If the same examiner is not available, the AMC must afford the Veteran a new comprehensive examination by an appropriate medical professional. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. The examiner is asked to answer the following question: Whether it is at least as likely as not (50 percent or greater probability) that the polyneuropathy was caused or aggravated by the service-connected diabetes mellitus disability. By aggravation, it means that the service-connected diabetes mellitus disability permanently aggravated the polyneuropathy. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion (the conclusion that an opinion cannot be provided without resorting to speculation). 4. After completing the above, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his attorney should be provided a supplemental statement of the case and given an opportunity to respond. The Veteran 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 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). _________________________________________________ Alexandra P. Simpson 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).