Citation Nr: 1410128 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 11-18 463 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for neuropathy of the upper extremities, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for neuropathy of the lower extremities, to include as secondary to service-connected diabetes mellitus. 3. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus and coronary artery disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1968, including service in the Republic of Vietnam. These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision that, in pertinent part, denied service connection for neuropathy of the upper extremities; for neuropathy of the lower extremities; and for hypertension. The Veteran timely appealed. These are the only issues that have been perfected on appeal. In addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his electronic claims file. The issue of whether new and material evidence has been submitted to reopen a claim for service connection for chronic obstructive pulmonary disease (claimed as restrictive lung disease) has been raised by the record (May 2013 correspondence), 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 RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran and his representative when further action is required. REMAND Records Records show that the Veteran received treatment for hypertension from a private physician (Dr. Ramireddy). The RO or AMC should specifically seek the Veteran's authorization for release of treatment records pertaining to hypertension. In September 2011, the Veteran submitted a statement from a private physician (Dr. Singh), indicating that the Veteran has peripheral neuropathy and diabetic neuropathy. The RO or AMC should specifically seek the Veteran's authorization for release of treatment records pertaining to peripheral neuropathy and to diabetic neuropathy from 2009 to the present date. Hypertension The Veteran seeks service connection for hypertension and has asserted that the claimed disability either had its onset in active service, or is secondary to service-connected diabetes mellitus or coronary artery disease. Service treatment records do not reflect any findings or complaints of elevated blood pressure or hypertension. The post-service treatment records, dated in October 2008, show that the Veteran's hypertension was well controlled on current medications. In December 2008, the Veteran reported that his blood pressure issues resolved after taking anti-anxiety medication. The report of a November 2009 VA examination reflects that the Veteran's hypertension was diagnosed in 1999. The VA examiner opined that the Veteran's hypertension was not a complication of diabetes mellitus because hypertension was diagnosed many years before diabetes mellitus; and that the Veteran's hypertension was not worsened or increased by his diabetes mellitus. In November 2010, the RO granted service connection for coronary artery disease and assigned a 30 percent evaluation, effective August 31, 2009; and assigned a 60 percent evaluation, effective April 26, 2010. In January 2013, the RO denied the Veteran's claim for service connection for PTSD. The Board notes that the November 2009 examiner did not provide an opinion regarding whether the Veteran's current hypertension is related to active service. With regard to the Veteran's claim for secondary service connection, the Board finds that no examiner has provided an opinion regarding whether the Veteran's hypertension is proximately due to or aggravated by the service-connected coronary artery disease nor was an opinion with a rationale provided as to whether hypertension is aggravated by diabetes. Hence, the Board cannot resolve this matter without further medical clarification. Neuropathy of the Upper and Lower Extremities The Veteran claims that he currently has neuropathy of the upper and lower extremities that is secondary to his service-connected diabetes mellitus. The Veteran is competent to describe his symptoms. However, there remains a great disparity in the record. The November 2009 VA examiner found no neurologic disease, and the Veteran at that time also denied symptoms of peripheral neuropathy. Nerve conduction studies and electromyograph conducted in May 2010 were normal, and revealed no evidence of neuropathy. Subsequent VA examination in August 2012 did not show neuropathy as a complication of the Veteran's diabetes mellitus. In June 2011, a private physician indicated that the Veteran was unable to perform any sedentary or manual work due to peripheral neuropathy and diabetic neuropathy. If additional treatment records associated with the Veteran's claims file (paper or electronic), pursuant to this remand, reflect evidence or manifestations or symptoms of neuropathy of the upper or lower extremities, then the Board finds that an addendum from either the November 2009 examiner or the August 2012 examiner (or from a suitable substitute) is needed to determine whether the Veteran has current neuropathy of the upper or lower extremities that either had its onset during service or is otherwise related to his active service, or is secondary to the service-connected diabetes mellitus. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2013). While further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary contact information and authorization from the Veteran, please request treatment records that pertain to hypertension from the Veteran's private physician (Dr. Ramireddy), and that pertain to hypertension, peripheral neuropathy and diabetic neuropathy from the Veteran's private physician (Dr. Singh); and associate them with the Veteran's claims file (paper/electronic). If, after making reasonable efforts to obtain records identified by the Veteran; and if the RO or AMC is unable to secure such records, the RO or AMC must notify the Veteran and (a) identify the specific records the RO or AMC is unable to obtain; (b) briefly explain the efforts that the RO or AMC made to obtain those records; (c) describe any further action to be taken by the RO or AMC with respect to the claims; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Obtain and associate with the Veteran's claims file (paper/electronic), VA treatment records for hypertension and for neuropathy of the upper and lower extremities, dated from January 2013 to present. 3. Afford the Veteran a VA examination to determine the etiology of any hypertension found to be present. The examiner should opine whether it is at least as likely as not (50 percent probability or more) that hypertension is related to active service. Please provide a complete explanation for the opinion. The examiner should also opine whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected coronary artery disease caused hypertension. Please provide a complete explanation for the opinion. The examiner should also opine whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected coronary artery disease or diabetes mellitus and/or the associated renal insufficiency aggravated (i.e., worsened), the Veteran's hypertension beyond the natural progress of the disease. Please provide a complete explanation for the opinion. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's hypertension found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected coronary artery disease or diabetes mellitus with associated renal insufficiency. All opinions and conclusions expressed must be supported by a complete rationale in a report. The Veteran's claims file (paper/ electronic) must be made available to the examiner, and the examination report should note review of the file. 4. If, and only if, additional treatment records associated with the Veteran's claims file (paper/electronic) reveal evidence or manifestations or symptoms of neuropathy of the upper or lower extremities, the November 2009 VA examination report and the August 2012 VA examination report should be returned to the examiner(s) (or, if either examiner is unavailable, a suitable substitute) for an addendum opinion identifying any current neuropathy of the upper or lower extremities; and expressing opinions as to: (a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's current neuropathy of the upper or lower extremities is the result of disease or injury incurred during service, to specifically include his active service in Vietnam; or other incidents of active service, as credibly reported by the Veteran. (b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected diabetes mellitus has caused neuropathy of the upper or lower extremities; and (c) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected diabetes mellitus has aggravated his neuropathy of the upper or lower extremities (i.e., whether his neuropathy of the upper or lower extremities has worsened beyond the natural progression of the disease due to the service-connected disability). If aggravation is shown, the examiner should specify what permanent, measurable increase in the severity of neuropathy of the upper or lower extremities is attributable to the service-connected disability. An explanation of the underlying reasons for any opinions offered must be included. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner is also advised that the Veteran is a credible and reliable historian with regard to the observable symptoms he experienced. If the examiner or substitute deems it advisable to conduct a further in-person examination of the Veteran, then such an examination should be scheduled and conducted. If the examiner determines that an opinion cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed disorder, or whether the actual cause is due to multiple potential causes. In other words, simply stating that an opinion cannot be made without resort to mere speculation is not acceptable without a detailed explanation as to why this is so. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The Veteran's claims file (paper/electronic) must be made available to the examiner designated, and the addendum report should note review of the file. 5. After ensuring that the requested actions are completed, re-adjudicate the claims on appeal. If the benefits sought are not fully granted, furnish a supplemental statement of the case (SSOC) and then return the claims file to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter(s) that 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. 2013). _________________________________________________ S. S. TOTH 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).