Citation Nr: 1801038 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 11-27 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to service-connected diabetes mellitus type 2. 2. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to service-connected diabetes mellitus type 2. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to November 1971, and from September 1972 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In September 2017, the Veteran withdrew his request for a Board hearing. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In January 2010, the Veteran filed a service connection claim for bilateral peripheral neuropathy of the upper and lower extremities, to include as secondary to his service-connected diabetes. A rating decision of June 2010 denied service connection as to both the upper and lower bilateral extremities. The Veteran has perfected an appeal only with respect to the denial of service connection for peripheral neuropathy of the bilateral lower extremities. See VA Form 9 of October 2011. The Veteran is service-connected for diabetes mellitus type 2 and for posttraumatic stress disorder (PTSD) with depression and polysubstance dependence in remission. The Veteran's overseas service in the Republic of Vietnam is shown by service personnel records, and the grant of service connection for diabetes mellitus in September 2007 was based, in part, on presumed exposure to an herbicide agent. The Veteran has bilateral peripheral neuropathy of the lower extremities. See VA examination report of June 2017. The Veteran underwent three VA examinations (in April 2010, March 2013, and June 2017), and an additional VA medical opinion was obtained in September 2015 without examination. There are conflicting nexus opinions of record. The most recent examination took place in June 2017. The Board will remand for an addendum medical opinion because the report of the latter examination is inadequate. See 38 C.F.R. § 19.9(a) (2017). The June 2017 examiner answered "no" to the form question as to whether the Veteran now or has ever been diagnosed with diabetic peripheral neuropathy. In summarizing the Veteran's medical history, the June 2017 examiner omitted any reference to the positive nexus opinion of the March 2013 VA examination report, in which the Veteran was, in fact, found to have diabetic peripheral neuropathy of the bilateral lower extremities. The June 2017 examination report also contains contradictory information. The examiner states that the Veteran does not have diabetic peripheral neuropathy, but upon examination the Veteran is found to have severe symptoms of diabetic peripheral neuropathy of the right and left lower extremities. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The June 2017 examiner determined that it would be mere speculation to try to determine whether the Veteran's "underlying neuropathy has been aggravated beyond what would have been its normal progression by the [Veteran's] diabetes." For the reasons stated above, the medical opinion appears to be based, at least in part, on an inaccurate factual premise, and it is therefore inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding treatment records relating to the remanded issues. All records/responses received must be associated with the electronic claims file. 2. Refer the Veteran's claims folder to a VA doctor for an addendum medical opinion as to the current nature and etiology of the Veteran's claimed peripheral neuropathy of the bilateral lower extremities. The Veteran's virtual claims folder must be made available for the doctor's review. The reviewing doctor should identify all neurological disorders of the lower extremities, including peripheral neuropathy, found to be present at any time since the filing of the Veteran's claim in January 2010, even if now resolved. The reviewer should state whether it is at least as likely as not that any current neuropathy qualifies as an early-onset peripheral neuropathy and should estimate when any early-onset peripheral neuropathy at least as likely as not had its onset. With respect to each neurological disorder that is diagnosed for the lower extremities, the reviewer must offer an opinion as to whether it is at least as likely as not related to the Veteran's service, to include his presumed herbicide exposure based on service in Vietnam. The reviewer must also address whether the Veteran's peripheral neuropathy is at least as likely as not caused by, and/or aggravated by, the Veteran's service-connected diabetes mellitus. If the neuropathy is not early-onset neuropathy, the mere fact that a legal presumption has not been established for the particular type of neuropathy of the Veteran is not dispositive of the issue of a nexus between current disability and service. The reviewing doctor must still give consideration to the likelihood that the Veteran's presumed exposure to an herbicide agent caused or aggravates his peripheral neuropathy. If it is determined that the Veteran's peripheral neuropathy is at as least as likely as not aggravated by service-connected diabetes mellitus, the reviewing doctor should quantify the degree of aggravation; he or she should identify the baseline level of severity prior to the onset of the aggravation, or by the earliest medical evidence at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. In the report, the reviewer should attempt to resolve or otherwise address the conflicting findings and nexus opinions of the VA medical reports of record. An explanation of the facts and medical principles involved would be of considerable assistance to the Board. A rationale for all opinions expressed in the report must be set forth. 3. Then, after ensuring that the above development and any other necessary development has been completed to the extent possible, readjudicate the Veteran's claim, If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and the requisite opportunity to respond. Thereafter, return the case to the Board if otherwise in order. The Veteran 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). The 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. §§ 5109B, 7112 (2012). _________________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).