Citation Nr: 1416954 Decision Date: 04/16/14 Archive Date: 04/24/14 DOCKET NO. 11-16 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a neurological disorder of the upper and lower extremities, claimed as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Anthony Flamini, Counsel INTRODUCTION The Veteran had active military service from March 1966 to March 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for a neurological disorder of the upper and lower extremities, which he claims developed secondary to his service-connected diabetes mellitus, type II. The Veteran was referred to a private neurologist in 2003 due to complaints of numbness and paresthesias in both hands. A September 2003 electromyelogram (EMG) report diagnosed the Veteran as having sensory motor axonal polyneuropathy most likely secondary to diabetes, although carpal tunnel syndrome could not be ruled out. An October 2003 opinion obtained from another private neurologist in the same office noted the Veteran's history was significant for diabetes and diagnosed him as having diabetic peripheral neuropathy. The Veteran was also provided with a VA diabetes examination in March 2010, at which time the examiner found no evidence of peripheral neuropathy. Although the examiner did not review the claims file, he noted that the examination request referenced the 2003 diagnoses rendered by the private neurologists. However, the VA examiner emphasized that this private testing was conducted 7 years prior, and that he found the Veteran to have essentially normal sensory and motor response to all forms of stimuli upon current examination. The examiner explained that clinical testing elicited minimally positive findings that may be associated with median nerve entrapment and ulnar tunnel syndrome, both of which could give on-and-off symptoms of paresthesias of the hands. He also found the bilateral feet to have normal sensory response, with the exception of poor deep tendon reflexes for all 4 extremities. At the Veteran's February 2013 Board videoconference hearing, he testified that since his March 2010 VA examination, he has lost additional sensation in his upper and lower extremities. Specifically, he explained that he experienced frequent numbness, tingling sensation, and involuntary shaking in his extremities. The Board finds that, given the previous diagnoses of peripheral neuropathy in 2003, as well as the fact that the Veteran now reports neurological symptomatology of the extremities that was not found upon VA examination in March 2010, the Veteran should be provided with a new VA examination to diagnose his current neurological symptomatology and determine the likelihood that it is related to his service-connected diabetes. In addition, the Veteran also testified at his February 2013 Board videoconference hearing that he complained of his neurological symptomatology to a VA nurse practitioner in late 2012. However, the most recent VA treatment records associated with the claims file are dated in January 2011. As such, the Board finds that these additional treatment records should be obtained and associated with the claims file upon remand. 38 U.S.C.A. § 5103A(c) (West 2002); 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). Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records from the Louis Stokes Cleveland VA Medical Center in Cleveland, Ohio, and any associated outpatient clinics dated from January 2011 to the present and associate them with the claims file. All attempts to obtain those records must be documented in the claims file. 2. Schedule the Veteran for an examination to determine the nature and etiology of any identified disorder(s) of the upper and lower extremities. The claims file, to include copies of the September 2003 and October 2003 private neurology documents, and a copy of this Remand must be provided to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, to include EMG and nerve conduction studies, must be accomplished After the completion of above as well as a physical examination of and interview with the Veteran, the examiner must address the following: a) Identify any disorder which is manifested by numbness, tingling, involuntary shaking, and/or loss of sensation of any of the Veteran's upper and/or lower extremities. Specific diagnoses should be rendered or ruled out for all of the Veteran's extremities. b) For each disorder identified in part (a), the examiner should offer an opinion as to whether such is at least as likely as not (50 percent probability or greater) related to the Veteran's military service, to include his presumed exposure to herbicides. c) For each disorder identified in part (a), the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) caused by his service-connected diabetes mellitus, type II. d) For each disorder identified in part (a), the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) aggravated by his service-connected diabetes mellitus, type II. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. Any stated opinion should be supported by a complete rationale. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2013). 6. When the above development has been completed, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, issue an additional supplemental statement of the case to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board for appellate review. 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). 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. 2013). _________________________________________________ ROBERT C. SCHARNBERGER 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).