Citation Nr: 1315546 Decision Date: 05/10/13 Archive Date: 06/28/13 DOCKET NO. 06-32 427 ) DATE 10 MAY 2013 On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for peripheral neuropathy of the upper extremities, to include on a secondary basis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from May 1974 to May 1977. This matter comes before the Board of Veterans1 Appeals (Board) on appeal from a July 2006 rating decision in which the RO, inter alia, denied service connection for peripheral neuropathy of the upper extremities. The Veteran timely appealed the decision. In September 2009, the Veteran testified during a Board hearing at the RO before a Veterans Law Judge. A transcript of the hearing is associated with the claims file. This case was previously before the Board in January 2012. At that time, the issues before the Board involved service connection claims for hepatitis C and peripheral neuropathy of the upper extremities, both of which were remanded for additional action. Subsequently, in a January 2013 rating action, service connection was established for hepatitis C; accordingly, that claim is no longer in appellate status. As will be explained herein, in light of the award of service connection for hepatitis C, the matter of secondary service connection for peripheral neuropathy of the upper extremities (based on a claimed relationship to hepatitis C) is now a viable claim which requires additional development prior to adjudication of the claim on the merits, as explained below. In correspondence dated in March 2013, the Veteran was advised of the fact that the Veterans Law Judge who conducted the 2009 hearing is not longer employed with VA, and afforded opportunity to request another hearing, if he so desired, pursuant to 38 C.F.R. §§ 20.707 and 20.717 (2012), as that judge was no longer able to participate in the adjudication of the case. Later in March 2013, the Veteran responded that he did not wish appear for another hearing and requested that the case be considered on the basis of the evidence of record. -2- For reasons expressed below, the claim on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that additional RO action on the claim remaining on appeal is warranted. The Veteran is seeking service connection for peripheral neuropathy of the upper extremities, primarily claimed as secondary to hepatitis C. Unfortunately, a remand is required in this case to address this issue. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c),(d)(2012). A brief review of pertinent evidence on file reflects that a diagnosis of chronic hepatitis C was well established, as reflected in a VA medical record dated in July 2005. An entry dated in September 2005 includes an impression of possible peripheral neuropathy, related to hepatitis C, alcohol or drug abuse. There is no indication in the VA records that this matter of etiology was further addressed or ever definitively resolved. Pursuant to the Board's January 2012 remand, additional development was requested with respect to a (pending at that time) service connection claim for hepatitis C. While a service connection claim for peripheral neuropathy of the upper extremities was also pending at that time, this claim was described inextricably intertwined with the hepatitis C claim (as it was brought primarily on -3- the basis of secondary entitlement), but no additional development of the latter claim was requested by the Board. A VA examination was conducted in February 2012, and the examiner opined that the most likely time of onset of the Veteran's hepatitis C was during military service in the 1970's. There was no discussion of any symptoms relating to peripheral neuropathy in that examination report, nor was any such development requested in the January 2012 remand. Ultimately, service connection was established for hepatitis C in a January 2013 rating action. Pursuant to VA's duty to assist a claimant in the development of facts pertinent to the claim, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability.38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) noted that the third prong of 38 C.F.R. § 3.159(c)(4), requiring that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. To date, no VA examination has been conducted or medical opinion obtained in conjunction with the claim involving peripheral neuropathy of the upper extremities. In light of the evidence currently on file, the Board believes that the threshold requirements discussed in McLendon are arguably met with respect to this service connection claim, warranting an examination in accordance with the duty to assist. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012 (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). In doing so, the Board concludes that in order fulfill -4- the duty to assist in providing a complete and adequate examination under the circumstances of this case, the examination should reflect review of the claims file and include an opinion addressing the likely etiology of the Veteran's claimed peripheral neuropathy. See Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2010); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (duty to assist may include "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"). The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file any copy(ies) of the notice of the date and time of examination sent to him by the pertinent VA medical facility. Prior to arranging for the above-noted examination, to ensure that all due process requirements are met, and the record is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, As for VA records, the Board observes that it appears that the Veteran received regular treatment through VA. The Virtual VA file reflects that the Veteran's VA/CAPRI records were last compiled and reviewed in conjunction with the appeal in July 2012, and that these records were current to June 28, 2012. Hence, it appears that more recent VA records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462,466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611,613 (1992). Accordingly, the RO should obtain all outstanding, pertinent VA records of evaluation hospitalization, and/or treatment of the Veteran from June 28, -5- 2012, forward, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, any pertinent, outstanding private records. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. The RO's readjudication of the claim should include consideration of all evidence added to the record since the last adjudication of the claim in October 2012. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent VA records of evaluation hospitalization, and/or treatment of the Veteran from June 28, 2012. Follow the current -6- procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the pending service connection claim for peripheral neuropathy of the upper extremities that is not currently of record Specifically request that the appellant provide, or provide appropriate authorization to obtain, any outstanding private medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record-to include following the procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA examination, by an appropriate physician, at a VA medical facility, for his claimed peripheral neuropathy of the upper extremities. The entire claims file, to -7- include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner is requested to elicit and record in the examination report the Veteran's lay statements relating to his symptoms (duration, nature and frequency) as well as the onset, of his claimed peripheral neuropathy of the upper extremities. All appropriate tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report) and all clinical findings should be reported in detail. For each upper extremity, the examiner should clearly indicate whether the Veteran manifests peripheral neuropathy or other neurological disability, describing the symptomatology and impairment associated with the diagnosed disorder to the extent possible. If no such disorder is shown on examination, warranting no diagnosis, the examiner should specifically so state for the record and explain why. For each diagnosed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disorder of (a) was incurred in or first manifested during the Veteran's period of active service from May 1974 to May 1977; or, if not (b) was caused or is aggravated, (i.e. permanently worsened beyond its natural progress), by service-connected disability, to particularly include hepatitis C, as claimed. . -8- In rendering the requested opinion, the examiner should consider and discuss all pertinent medical and lay evidence, to include the Veteran's assertions. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed, typewritten record. 5. If the Veteran fails to report for the scheduled examination, obtain and associate with the claims file any copy(ies) of notice of the date and time of the examination sent to him by the pertinent VA medical facility 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence (to include all that added to the record since the last adjudication of the claim in October 2012) and legal authority. 8. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate -9- time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarks v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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). Under 38 U.S.C.AT>3252 (West 2002), only 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 the appeal. 38 C.F.R. § 20.1100(b) (2012). -10-