Citation Nr: 1332122 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 10-14 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as secondary to diabetes mellitus, type II. 2. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as secondary to diabetes mellitus, type II. 3. Entitlement to an initial increased compensable evaluation for left mid-thoracic neuropathy T4-5. REPRESENTATION Appellant represented by: American Red Cross WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1967 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for peripheral neuropathy of the upper and lower extremities, to include as secondary to diabetes mellitus, type II. The Veteran timely appealed that decision. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in July 2013; a transcript of that hearing is associated with the claims file. The issue of entitlement to service connection for cardiovascular disease, including residuals of a stroke, hypertension, and hyperlipidemia has been raised by the representative (April 2013 statement), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the matter, and it is referred to the AOJ for appropriate action. 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 With regards to the claim of service connection for bilateral lower extremity neuropathy, the Veteran submitted a July 2013 letter from Dr. R.K.S. which stated that the Veteran had "Peripheral Neuropathy in the lower extremities related to his Diabetes for which he is receiving tests and treatment." The Board notes that treatment records from Dr. R.K.S. since 2009 do not appear in the claims file, and therefore, it appears that there are outstanding private treatment records which may be potentially relevant to the claim. Thus, a remand in order to attempt to obtain those records is necessary at this time. Any other ongoing private and VA treatment records 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). The Board notes that the right upper extremity peripheral neuropathy claim must also be remanded at this time as those private treatment records, as well as any other records obtained on remand, may potentially be relevant to that claim as well. Thus, the right upper extremity peripheral neuropathy claim is intertwined with the development for the bilateral lower extremity peripheral neuropathy claims. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, Dr. R.K.S.'s statement that he has diagnosed with peripheral neuropathy of the lower extremities demonstrates a potential worsening of that condition as compared to the findings in the May 2013 VA examination, which noted that the Veteran did not have any peripheral neuropathy in the lower and right upper extremities. The Board finds, therefore, that another VA examination should be performed on remand with regards to the Veteran's claimed bilateral lower and right upper extremity peripheral neuropathy. 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). Finally, service connection for left mid-thoracic neuropathy T4-5, was granted in an October 2012 rating decision during the pendency of the appeal. In a November 2012 document, the Veteran expressed his disagreement with the assigned noncompensable evaluation. A statement of the case has not been issued regarding this matter. Since the Veteran properly submitted a notice of disagreement within a year of the assignment of an initial noncompensable evaluation for left mid-thoracic neuropathy T4-5, he has properly initiated the appeals process with respect to that claim. See 38 C.F.R. § 20.200 (2013). Accordingly, VA has a duty to issue a statement of the case on that issue so that the Veteran may complete an appeal by filing a Substantive Appeal. See Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, a remand is necessary as to that issue. Accordingly, the case is REMANDED for the following action: 1. The RO should readjudicate the issue of entitlement to an initial increased compensable evaluation for left mid-thoracic neuropathy T4-5. If the claim remains denied, the RO is directed to promulgate a statement of the case on this issue and to provide the appellant with the appropriate notice of appellate rights. If the claim is not resolved to the appellant's satisfaction, he should be provided with a statement of the case and an appropriate opportunity to respond thereto. The issue should be returned to the Board only if a timely substantive appeal is received. 2. Ask the Veteran to identify any VA or private treatment that he may have had for his bilateral lower and right upper extremity peripheral neuropathy, which is not already of record, to specifically include ongoing treatment with Dr. R.K.S. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for a VA examination in order to determine the nature and etiology of any peripheral neuropathy of the bilateral lower and right upper extremities. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary, including an electromyelogram (EMG) should be conducted, and the results reported in the record. After review of the claims file and examination of the Veteran, the examiner should note any neurological disorders of the lower and right upper extremities found. For any peripheral neuropathy of the lower and right upper extremities found, the examiner should indicate whether it more likely, less likely, or at least as likely as not (50 percent or greater probability) caused or aggravated by diabetes mellitus, type II. If aggravated, specify the baseline of peripheral neuropathy prior to aggravation, and the permanent, measurable increase in peripheral neuropathy resulting from the aggravation. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claims of service connection for bilateral lower extremity and right upper extremity peripheral neuropathy, to include as secondary to diabetes mellitus, type II. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ THOMAS J. DANNAHER 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) (2013).