Citation Nr: 1802291 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-39 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Reed, Associate Counsel INTRODUCTION The Veteran served on active duty during periods from July 1959 to July 1963, August 1963 to November 1969, and July 1970 to January 1981. This case comes before the Board of Veterans' Appeals (the Board) from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A remand is necessary because there exists incomplete and contradictory information regarding the nature and etiology of the Veteran's condition in the file. The Veteran was provided a VA medical examination in November 2013. That examination did not note any symptoms or treatment for peripheral neuropathy at the time of the examination. The examiner also noted that no EMG studies had been conducted. In contrast, a private medical examination received by VA later that same month indicated a diagnosis of diabetic neuropathy of the bilateral lower extremities. The examination noted symptoms such as numbness in the lower extremities, but did not include an explanation for why it was considered related to the Veteran's diabetes mellitus. Further, the private examination noted the Veteran had reported numbness in his foot in a September 2012 treatment record from Guthrie Clinic. The private examiner used that as the date of diagnosis. However, the September 2012 record indicated that there were no neurological abnormalities upon examination of the foot. Thus, it is unclear on what basis this retrospective diagnosis was made. As the record lack sufficient, competent medical evidence to adjudicate the Veteran's claim, a remand is necessary to obtain a new examination to clarify the nature and etiology of the Veteran's claimed disabilities. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i) (2017). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the Veteran's claims file any outstanding VA records regarding his claims for service connection for a neurological disability of the bilateral lower extremities. 2. After completing the above actions, forward the Veteran's claims file to an appropriate examiner to evaluate the current nature, severity, and etiology of the Veteran's neurological disability of the bilateral lower extremities. A copy of this remand must be made available to the examiner for review in conjunction with this examination. Any indicated tests and studies must be accomplished. All clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner is requested to provide the following opinions: a. Identify any neurological disabilities, to include diabetic neuropathy and peripheral neuropathy, of the Veteran's bilateral lower extremities that the Veteran can currently be diagnosed with or has been diagnosed with since approximately November 2012. b. For each identified neurological disability of the bilateral lower extremities, state whether it is at least as likely as not (a probability of 50 percent or greater) that it began in or is related to active service. c. For each identified neurological disability of the bilateral lower extremities, state whether it is at least as likely as not (a probability of 50 percent or greater) that it is secondary to any of the Veteran's service-connected disabilities, to include diabetes mellitus. d. For each identified neurological disability of the bilateral lower extremities, state whether it is at least as likely as not (a probability of 50 percent or greater) that it is aggravated (chronically worsened) by any of the Veteran's service-connected disabilities, to include diabetes mellitus. In formulating the opinions, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. The examiner is request to reconcile his or her opinions with any contradictory evidence of record, to include the November 2013 VA examination report; the private medical opinion received in November 2013; and treatment records from September 2012 at the Gutherie Clinic. If aggravation is found, the examiner should address the following medical issues to the extent possible: (1) the baseline manifestations of the Veteran's disabilities found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately caused by the service-connected disability. Any opinions offered should be accompanied by the underlying reasons for the conclusions. If the examiner is unable to offer any of the requested opinions, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The Veteran has the right to submit additional evidence and argument on the 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 2014). _________________________________________________ MICHAEL A. PAPPAS 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).