Citation Nr: 1752904 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-36 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for right lower extremity neuropathy. 2. Entitlement to service connection for right upper extremity neuropathy. 3. Entitlement to service connection for left upper extremity neuropathy. 4. Entitlement to a rating in excess of 20 percent for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD T. Matta, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1966 to June 1969, with service in Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO) in October 2011(which denied the service connection claims) and in May 2013 (which denied the increased rating claim). In April 2017, a videoconference hearing was held before the undersigned; a transcript is in the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. REMAND The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claims. Once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Service Connection for Neuropathy The Veteran claims that his right lower extremity and bilateral upper extremity neuropathy are due to his service-connected diabetes mellitus. On March 2011 VA examination, the Veteran's lower extremity radiculopathy was determined to be related to the Veteran's nonservice-connected lumbar spine condition since it had existed for years prior to the Veteran's 2004 diagnosis of diabetes. The examiner opined that the Veteran's diabetes did not worsen or increase his radiculopathy; he did not address the Veteran's lower extremity neuropathy. The examiner further noted that there was no diagnosis of upper extremity diabetic neuropathy. On May 2013 VA diabetes mellitus examination, the examiner noted that the Veteran's lower extremity radiculopathy was related to his lumbar condition and existed prior to the diagnosis of diabetes; he further opined that it was not aggravated by his diabetes. The examiner then stated that the Veteran had no diagnosis of upper extremity diabetic neuropathy because there was no evidence of such; she noted normal sensory to monofilament testing to his bilateral upper extremities. Instead, the examiner found the Veteran's symptoms to be consistent with lumbar radiculopathy. Following these examinations, the Veteran's VA treatment records note diagnoses of Type 2 diabetes mellitus with diabetic polyneuropathy and diabetic neuropathy. See generally August and December 2015 and March, June, and July 2016 VA treatment records. Additionally, while the VA treatment records note such diagnoses, it is unclear whether such diagnoses are related to his complaints of bilateral upper extremity and/or right lower extremity numbness and pain. Under the circumstances, he should be afforded an examination, and an etiological opinion should be obtained, to determine whether he has peripheral neuropathy of the right and/or left upper extremities and right lower extremity, to include as due to exposure to herbicide agents or as secondarily due to diabetes. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. §§ 3.159(c)(4), 3.309(e). Increased Rating for Diabetes Mellitus The most recent VA examination to evaluate the severity of the Veteran's diabetes mellitus was in May 2013, more than four years ago. He has alleged in statements that the rating assigned does not reflect the current severity of this disability as he may now have regulated activities due to his diabetes. His VA treatment records also identify his diabetes mellitus as "uncontrolled." Accordingly, the Board finds that a new examination to ascertain the severity of his diabetes mellitus is necessary. Additionally, during his April 2017 hearing, the Veteran testified that he would submit additional documentation noting regulation of activities due to his service-connected diabetes. To date, he has not done so. As this case is being remanded anyway, he will have another opportunity to submit such evidence. Other Considerations Additionally, it is unclear from the record whether the Veteran is receiving Social Security Administration (SSA) disability benefits. In an August 2016 VA treatment record, he noted receiving social security compensation; it is unclear if he is receiving retirement or disability benefits. As this matter is being remanded anyway, the AOJ should seek clarification from the Veteran and obtain all relevant records as necessary. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Accordingly, the case is REMANDED for the following: 1. The AOJ should ask the Veteran whether he has applied for SSA disability benefits based on his diabetes mellitus or neuropathy. If so, the AOJ should secure for the record from SSA copies of its determination on the Veteran's claim for SSA disability benefits (and all medical records considered in connection with such claim). 2. The AOJ should ask the Veteran to identify the provider(s) of any and all private evaluations and/or treatment he has received for the disabilities on appeal, and to provide authorizations for VA to secure the complete records of all such private evaluations and treatment. The AOJ should secure for the record complete clinical records of all evaluations and treatment (records of which are not already associated with the record) from the providers identified. 3. The AOJ should arrange for the Veteran to be examined by a neurologist (given the nature of the questions posed) to determine whether he currently has, or during the pendency of these claims has had, peripheral neuropathy of the right and/or left upper extremities and right lower extremity and, if so, the nature and likely cause of his diagnosed peripheral neuropathy. The entire record must be reviewed by the examiner in conjunction with the examination. Based on review of the record, and interview and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Identify all neurological conditions of the right and left upper extremities and right lower extremity. Specifically, does the Veteran currently have, or at any time during the pendency of this claim has he had, a diagnosis of peripheral neuropathy of the right and/or left upper extremities or right lower extremity? If the answer is no, the examiner must reconcile that conclusion with the VA treatment records that mention peripheral sensory neuropathy due to diabetes. (b) If peripheral neuropathy of the right and/or left upper extremities or right lower extremity is diagnosed, the examiner should further opine regarding the likely cause of such. Specifically, is it at least as likely as not (a 50% or better probability) that such was incurred during his service, to include as due to exposure to Agent Orange/herbicides therein? If not, is it at least as likely as not (a 50% or better probability) that the Veteran's peripheral neuropathy is caused or aggravated by his service-connected diabetes? (c) If the examiner finds that the Veteran's peripheral neuropathy was not caused, but was aggravated by his diabetes, the examiner should specify, to the extent possible, the degree of disability (pathology/impairment) that is due to such aggravation. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 4. The AOJ should arrange for the Veteran to be examined by an endocrinologist to determine the current severity of his service-connected diabetes. The entire record must be reviewed in conjunction with the examination, and all tests or studies deemed appropriate should be ordered. The examiner must describe all pertinent findings and features of the Veteran's diabetes in sufficient detail to allow for application of the relevant rating criteria. Specifically, he or she should note whether it requires regulation of activities. If so, the examiner should also address whether the Veteran's diabetes has resulted in any episodes of ketoacidosis or hypoglycemic reactions (and if so, their frequency and the frequency of emergency or provider treatment for such episodes). A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 5. The AOJ should then review the record and re-adjudicate the claims. If they remain denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C.A. §§ 5109B, 7112 (2014). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board of Veterans' Appeals can be appealed to the United States Court of Appeals for Veterans Claims. 38 U.S.C.A. § 7252 (West 2014). This remand is a preliminary order and not an appealable decision on the merits of the claim(s). 38 C.F.R. § 20.1100(b) (2016).