Citation Nr: 1339974 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 08-24 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral neurologic disability of the upper extremities, to include as secondary to service-connected disabilities. 2. Entitlement to service connection for a bilateral neurologic disability of the lower extremities, to include as secondary to service-connected disabilities. 3. Entitlement to service connection for a kidney disability, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1957 to January 1976, which includes service in the Republic of Vietnam. These matters initially came before the Board of Veterans' Appeals (Board) from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO denied service connection for bilateral peripheral neuropathy of the upper and lower extremities and a kidney disability. The Veteran testified before the Board at a May 2010 hearing at the RO (Travel Board hearing). A transcript of the hearing has been associated with his claims folder. In January 2011, the Board remanded these matters for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and 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 Veteran if further action is required. REMAND In this case, the Veteran contends that he has a current bilateral neurologic disability of the upper and lower extremities and a current kidney disability and that these disabilities are related to his service-connected diabetes mellitus. He was afforded a VA examination in May 2011 and was diagnosed as having bilateral carpal tunnel syndrome, bilateral peripheral neuropathy of the lower extremities, and stage III chronic kidney disease related to focal segmental glomerulosclerosis. There is a notation following the kidney diagnosis that some kidney problems were "[i]n remission . . . [status post] Cyclosporin and high-dose steroids treatment." The physician who conducted the May 2011 VA examination opined that the diagnosed carpal tunnel syndrome was not caused by or related to the Veteran's service-connected diabetes mellitus or coronary artery disease. There was no further explanation or reasoning provided for this opinion. The examiner also opined that the Veteran's bilateral peripheral neuropathy of the lower extremities was not likely ("less likely than not") caused by or related to his service-connected diabetes mellitus. This opinion was based on the fact that the neuropathy was atypical for diabetic peripheral neuropathy and that other risk factors included arsenic toxicity. Additionally, the May 2011 examiner opined that the Veteran's diagnosed kidney problems were not caused by or related to his service-connected diabetes mellitus. Although the examiner reiterated that there was no clinical correlation/nexus, no further explanation or reasoning for the opinion was provided. The May 2011 opinions are all insufficient because they only addressed whether the Veteran's claimed disabilities were caused by his service-connected diabetes mellitus/coronary artery disease; however, service connection may also be granted for a disability that is "aggravated" by a service-connected disability and no opinion was provided as to any possible aggravation. 38 C.F.R. § 3.310 (2013). The May 2011 opinions pertaining to the Veteran's diagnosed carpal tunnel syndrome and kidney problems are also insufficient because they are not accompanied by any specific explanation or rationale. Also, the May 2011 examiner did not provide any opinion as to whether the Veteran's claimed disabilities were directly related to service. In light of the above, a remand is necessary in order to afford the Veteran new VA examinations to assess the nature and etiology of his claimed disabilities. The May 2011 VA examination report indicates that the Veteran received treatment for his claimed kidney disability from Dr. Dean until 2009. Also, he received treatment for both his claimed kidney disability and bilateral neurologic disability of the upper and lower extremities from Dr. Patel. Although the agency of original jurisdiction (AOJ) requested and received records from Dr. Dean, these records are only dated to January 2006. When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and of the need to provide a release for VA to obtain the records. If the Veteran does not provide the release, VA must ask the Veteran to obtain the records. 38 C.F.R. § 3.159(e)(2). These steps have not yet been taken with regard to any relevant treatment records from Dr. Patel and any additional relevant treatment records from Dr. Dean. As such records appear to be directly relevant to the issues on appeal, a remand is also necessary to attempt to obtain any additional relevant private treatment records. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete authorizations for VA to obtain all records of his treatment for a neurologic disability of the upper and lower extremities and a kidney disability from Dr. Dean dated from January 2006 through the present and from Dr. Patel. All efforts to obtain these records must be documented in the claims file. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA neurologic examination to assess the etiology of all current neurologic disabilities of the upper and lower extremities. The claims folder must be sent to the examiner for review. With respect to each current neurologic disability of the upper and lower extremities (i.e. any neurologic disability of the upper and lower extremities diagnosed since June 2006, including carpal tunnel syndrome and peripheral neuropathy), the examiner shall answer the following questions: (a) Is it at least as likely as not (50 percent or greater probability) that the current neurologic disability had its onset during service, is related to the Veteran's presumed exposure to herbicides in service, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not (50 percent or greater probability) that the current neurologic disability was caused (in whole or in part) by the Veteran's service-connected Type II diabetes mellitus and/or coronary artery disease, status post myocardial infarction and 2-vessel coronary artery bypass graft? (c) Is it at least as likely as not (50 percent or greater probability) that the current neurologic disability was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by the Veteran's service-connected Type II diabetes mellitus and/or coronary artery disease, status post myocardial infarction and 2-vessel coronary artery bypass graft? In formulating the above opinions, the examiner must acknowledge and comment on all neurologic disabilities of the upper and lower extremities diagnosed since June 2006 (including carpal tunnel syndrome and peripheral neuropathy) and the Veteran's presumed exposure to herbicides in service. The examiner must provide a rationale for each opinion. If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination to assess the nature and etiology of any current kidney disability. The claims folder must be sent to the examiner for review. The examiner shall answer the following questions: (a) Has the Veteran experienced any active kidney disability since June 2006? (b) If the Veteran has experienced any active kidney disability since June 2006, is it at least as likely as not (50 percent or greater probability) that the current kidney disability had its onset during service, is related to the Veteran's presumed exposure to herbicides in service, or is otherwise the result of a disease or injury in service? (c) If the Veteran has experienced any active kidney disability since June 2006, is it at least as likely as not (50 percent or greater probability) that the current kidney disability was caused (in whole or in part) by his service-connected Type II diabetes mellitus and/or coronary artery disease, status post myocardial infarction and 2-vessel coronary artery bypass graft? (d) If the Veteran has experienced any active kidney disability since June 2006, is it at least as likely as not (50 percent or greater probability) that the current kidney disability was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected Type II diabetes mellitus and/or coronary artery disease, status post myocardial infarction and 2-vessel coronary artery bypass graft? In formulating the above opinions, the examiner must acknowledge and comment on any active kidney disabilities diagnosed since June 2006 and the Veteran's presumed exposure to herbicides in service. The examiner must provide a rationale for each opinion. If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 4. After conducting any additional indicated development, readjudicate the issues on appeal. If a benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. Thereafter, the case shall be returned to the Board. The Veteran 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 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). _________________________________________________ JAMES L. MARCH 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).