Citation Nr: 1801079 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-10 861A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure. 2. Entitlement to service connection for neuropathy of the upper extremities, to include as due to diabetes mellitus. 3. Entitlement to service connection for neuropathy of the lower extremities, to include as due to diabetes mellitus. 4. Entitlement to service connection for a dental disorder, to include gum disease with tooth decay and tooth loss, to include as due to diabetes mellitus. 5. Entitlement to service connection for radiculopathy of the bilateral lower extremities associated with the service-connected lumbar spine disability. 6. Entitlement to an increased rating in excess of 40 percent for degenerative disc disease (DDD) of the lumbar spine. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and C.B. ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The veteran had active service from September 1967 to May 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2017, the Veteran and C.B. testified before the undersigned Veterans Law Judge during a Board hearing in Washington, DC. A transcript of the hearing has been associated with his claims file. Procedural Issues The Veteran filed a claim for an increased rating for his lumbar spine disability in June 2011. Additionally, the Veteran filed a claim for service connection for bilateral lower extremity radiculopathy associated with the lumbar spine disability in May 2012. The Board finds that, generally, a claim for radiculopathy is part and parcel of the increased rating claim for the lumbar spine disability. See 38 C.F.R. § 4.71, General Rating Formula, Note 1. Nonetheless, the Board will adjudicate the issue as a claim for service connection to allow the Board to consider all the evidence of record, and not just the evidence received during the increased rating period on appeal for the lumbar spine disability. Regarding the Veteran's dental disorder, the Board notes that the issue on appeal has been consistently characterized as "service connection for gum disease with tooth decay and tooth loss." See May 2012 rating decision, July 2014 Statement of the Case, and July 2017 Supplemental Statement of the Case. Although the Veteran provided testimony in September 2017 regarding a temporomandibular joint (TMJ) disorder, the AOJ just recently denied service connection for TMJ in a September 2017 rating decision. As such, if the Veteran seeks to appeal the TMJ issue, he is instructed to file a Notice of Disagreement (NOD) with the September 2017 rating decision. The Board also notes that the Veteran filed a NOD with respect to a September 2017 determination that denied entitlement to service connection for a bilateral eye disorder. In October 2017, the RO acknowledged receipt of the NOD and is taking additional action. As such, this situation is distinguishable from Manlicon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. Given the acknowledgement of the NOD by the RO, the Board finds that a remand for the issuance of a statement of the case for this issue in not necessary at this time, as such will be forthcoming. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Development is necessary to help corroborate the Veteran's claim of exposure to herbicide agents during service and to provide him with an additional VA examination of the spine. During the September 2017 Board hearing, the Veteran testified that he was first told that he had diabetes in 1987. The Veteran denied having served in the Republic of Vietnam, but indicated that he was in charge of a storage area that had Agent Orange stored on the property while serving in the 437th Military Airlift Wing in Charleston, South Carolina. Although the Veteran did not serve in Vietnam, VA still has a duty to assist the appellant by attempting to verify the claimed Agent Orange exposure. In a July 2014 Statement of the Case, the AOJ indicated that the Veteran had failed to respond to VA's request for dates of the claimed exposure. The Board notes, however, that in a VCAA Notice Response received in April 2014, the Veteran indicated that he was exposed to Agent Orange in Charleston, South Carolina while serving as an outdoor storage material handler, which included handling drums of Agent Orange between 1967 and 1969. Accordingly, the Board finds that appropriate sources, to include the Joint Services Records Research Center (JSRRC) must be contacted to verify whether the Veteran was exposed to Agent Orange during service. Moreover, a new VA examination of the spine should be afforded to the Veteran. During the Board hearing, the Veteran challenged the adequacy of the most recent back examination in September 2016. He essentially questioned the medical training of the examiner. On its face, the examination report does not appear inadequate; however, as additional medical evidence is needed to fully adjudicate the increased rating claim for low back disability, another examination will be afforded to him. Lastly, the Veteran's claims for service connection for upper and lower extremity neuropathy as due to diabetes and service connection for gum disease with tooth decay and tooth loss are inextricably intertwined with the diabetes mellitus issue being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, adjudication of these claims is deferred. Accordingly, the case is REMANDED for the following action: 1. Contact the JSRRC or other appropriate entity to verify whether the Veteran was exposed to herbicides, to include Agent Orange during his active military service and while stationed in Charleston, South Carolina between 1967 and 1969. 2. The AOJ should make a determination as to whether the Veteran was exposed to herbicide agents, to include Agent Orange during military service, and then undertake any additional development deemed necessary. 3. Schedule the Veteran for an additional VA examination to be conducted by a physician(s) with appropriate expertise in disabilities of the spine and associated neurologic conditions, to ascertain the current severity of his low back disability and the nature of any related neurologic impairment. To the extent possible, all efforts should be made to schedule the examinations at the VAMC in Nashville as the Veteran testified that such location is closer to his home. See Hearing Transcript. After examining the Veteran and reviewing his claims file, the examiner should: (a) Report in detail all signs, symptoms, and functional impairment associated with the service-connected low back disability. (b) Test and report the range of thoracolumbar spine motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the joint in question. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. If an opinion cannot be given without resorting to mere speculation, the VA examiner should state so and further provide a reason for such conclusion. (c) In reporting the range-of-motion findings, comment on the extent of any painful motion, at which measurement the pain begins, functional loss due to pain, weakness, excess fatigability, and additional disability during flare-ups. If a flareup is not present during the examination, elicit from the Veteran information regarding the frequency and duration of any back -ups. (d) Indicate whether the Veteran's low back disability results in IVDS and if so, indicate the presence of any incapacitating episodes of IVDS within the last year. (e) Neurologic: SPECIFICALLY CLARIFY whether the Veteran, at least as likely as not, has any neurologic impairment in the lower extremities that is associated with his service-connected low back disability. In other words, aside from the neurologic symptoms associated with the non service-connected diabetes, does the Veteran have any other neurologic impairment, including sciatica, in the lower extremities that are related to his service-connected low back disability? Attention is called to the following: *VA treatment records from January 1988 to August 1988 showing complaints of low back pain with radiating symptoms to the lower extremities. *July and August 1988 VA orthopedic clinic notes reflecting that the Veteran was examined for recurrent lumbosacral pain with "left-sided sciatica." The Veteran reported paresthesia in his left foot and leg over the L5 nerve distribution. *A July 1988 VA treatment record diagnosing the Veteran with "probably" bulging 4-5 disc with left sided nerve root compression. *A January 2002 VA examination report specifically noting that the Veteran did not have any symptoms of radiculopathy. *Electrodiagnostic studies performed in January 2002 showing evidence of sensory motor polyneuropathy with superimposed lumbosacral radiculopathy, which may be compatible with diabetic polyneuropathy. *MRI performed in January 2002 showing significant degenerative disc disease at L3-4 and L4-5 with encroachment of the neural foramen at those levels. * Neurology clinic notes dated in March 2002 indicating that the Veteran's symptoms were related his diabetes, noting that recent MRI showed no significant spinal cord compression or significant nerve root disease. *Additional notes dated in March 2002 indicating that the Veteran's left leg weakness was not likely due to the neuroforaminal encroachment shown on the MRI. *An October 2011 VA spine examination report reflecting that the Veteran did not have radicular pain or any other signs due to radiculopathy. * An April 2012 VA peripheral nerves examination report diagnosing polyradiculoneuropathy; and examiner's statement stated that the Veteran did not have typical radiculopathy related to his lumbar spine disease, but rather, a diabetic complication. * A VA spine examination report dated in September 2016 reflecting no radiculopathy. (f) Also comment on the functional effects, if any, of his service-connected spine disability upon his ordinary activities, to specifically include work or employment. The examiner is advised that he or she must provide an explanation for any conclusions reached. 4. Then readjudicate the Veteran's claims for: (1) service connection for diabetes mellitus, to include as due to herbicide exposure; (2) service connection for neuropathy of the upper extremities, to include as due to diabetes mellitus; (3) service connection for neuropathy of the lower extremities, to include as due to diabetes mellitus; (4) service connection for a dental disorder, to include gum disease with tooth decay and tooth loss, to include as due to diabetes mellitus; (5) increased rating for low back disability; and (6) service connection for bilateral lower extremity radiculopathy associated with the low back disability. If any benefits remain denied, issue an appropriate Supplemental Statement of the Case, and give the Veteran and his representative an appropriate opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further 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. §§ 5109B, 7112 (2012). _________________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).