Citation Nr: 1332944 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 11-09 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, claimed as secondary to service-connected Type II diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, claimed as secondary to service-connected Type II diabetes mellitus. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active military service from March 1970 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 Veteran maintains that he has peripheral neuropathy of his bilateral upper and lower extremities secondary to his service-connected Type II diabetes mellitus. In this regard, the Board notes that the RO granted service connection for Type II diabetes mellitus associated with herbicide exposure in a September 2009 rating decision, effective from January 14, 2009. Secondary service connection may be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 71 Fed. Reg. 52744-52747 (Sept. 7, 2006) and 38 C.F.R. § 3.310(b). The Veteran was afforded a VA examination to evaluate his claimed peripheral neuropathy in March 2009. Upon physical examination, the examiner noted that the Veteran had a normal gait and station, as well as normal motor strength. The examiner also noted decreased sensation to fine touch over the feet and ankles, decreased temperature sense in patch fashion in the arms and legs, and mildly impaired vibration sense in the ankles. The examiner opined that it was unlikely that the Veteran had significant diabetic polyneuropathy, but rather, cervical spondylostic myelopathy was more likely the cause of the Veteran's symptoms. When VA undertakes to obtain a VA medical opinion, the Board must ensure that such opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). Here, the examiner provided no rationale for his determination; therefore, the Board finds the rationale for his opinion unclear and inadequate. Therefore, the Veteran should be afforded a new VA examination that addresses the question of secondary service connection. The Board notes that the most recent VA treatment records are dated in December 2010. There is no indication that the Veteran has ceased VA treatment. Because VA is on notice that there are additional records that may be applicable to the Veteran's claims and because these records may be of use in deciding these claims, these records are relevant and should be obtained. Bell v. Derwinski, 2 Vet. App. 61 (1992). Further, the most recent private treatment records are dated in August 2009. Therefore, attempts should be made to obtain any relevant private treatment records, as well. Finally, the Veteran should be provided VCAA notice as to the issue of secondary service connection. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA letter as to the claims for service for peripheral neuropathy of the bilateral lower and upper extremities, claimed as secondary to service- connected Type II diabetes mellitus. See 38 C.F.R. § 3.310. 2. Obtain and associate with the Veteran's claims file his VA treatment records maintained by the VA Medical Center (VAMC) in Jackson, Mississippi, dated from December 2010 to the present. 3. Make arrangements to obtain any outstanding private treatment records, especially any relevant records since August 2009 (to include, but not limited to, treatment records from Rush Foundation Hospital). 4. Thereafter, the Veteran should be afforded a VA examination by a physician with the appropriate expertise to address the possible relationship between Type II diabetes mellitus and peripheral neuropathy of the bilateral upper and lower extremities. All indicated tests and studies are to be performed. In conjunction with this examination, the entire claims folder must be made available to the examiner for review. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner must identify all current neurological disorders of the upper and lower extremities. After reviewing the claims file and examining the Veteran, the examiner must address the following questions: (i) Is it at least as likely as not (50 percent or greater probability) that peripheral neuropathy of the bilateral upper and lower extremities was caused by service-connected Type II diabetes mellitus? (ii) Is it at least as likely as not (50 percent or greater probability) that peripheral neuropathy of the bilateral upper and lower extremities was aggravated by service-connected Type II diabetes mellitus? (iii) Is it at least as likely as not (50 percent or greater probability) that peripheral neuropathy of the bilateral upper and lower extremities had its clinical onset during active service or is related to any in-service disease, event, or injury, to include herbicide exposure? The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship or a finding of aggravation; less likely weighs against the claim. The examiner is also informer that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the examiner should indicate, to the extent that is possible, the approximate level of peripheral neuropathy present (baseline) before the onset of aggravation. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 5. Next, review the claims file and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 6. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with an SSOC and afford them the appropriate time period for a response before the claims file is returned to the Board for further appellate consideration. 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). These claims 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). _________________________________________________ P. M. DILORENZO 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).