Citation Nr: 1802774 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 14-07 135A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a vision disorder, secondary to service-connected diabetes mellitus type II. 2. Entitlement to service connection for peripheral neuropathy of the upper extremities, to include as due to exposure to herbicides or as secondary to service-connected diabetes mellitus type II. 3. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to exposure to herbicides or as secondary to service-connected diabetes mellitus type II. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert Batten, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure the Veteran is given every possible consideration. I. Eye Condition The Veteran contends that service connection is warranted for a bilateral eye condition. The Veteran is service connected for diabetes mellitus type II. In May 2014, Veteran was diagnosed with incipient cataract in both eyes. VA treatment records indicate that in May 2014 the Veteran underwent an annual diabetic eye examination. The treatment records found that the Veteran had diabetes type II without retinopathy. The Veteran's private treatment records indicate that the Veteran's eye sight had deteriorated since service. Although the Veteran was afforded a diabetes mellitus examination, the Veteran was not offered an eye examination. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (2017). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for finding a link between current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. In the present case, the Veteran has a current diagnosis of cataracts. Although the Veteran's pervious eye examination show that he did not have diabetic retinopathy, the examination was conducted in 2014. Given the low bar McLendon, and providing the Veteran the benefit of the doubt, the Veteran should be afforded a VA eye examination to determine the nexus of the Veteran's eye disability. II. Peripheral Neuropathy The Veteran contends that service connection is warranted for peripheral neuropathy of the lower and upper extremities. As noted above the Veteran is service-connected for diabetes mellitus type II. In an April 2011 VA examination, the Veteran was diagnosed with mild peripheral neuropathy in the lower extremities. The examiner noted that the Veteran had diabetes but did not opine as to whether the Veteran's diabetes caused or aggravated the Veteran's lower extremity neuropathy. Therefore, consistent with McLendon, the Veteran should be afforded an examination to determine the etiology of the Veteran's peripheral neuropathy of the lower extremities. The Veteran's treatment records consistently note that the Veteran does not have peripheral neuropathy of the upper extremities. However, in January 2015, the Veteran complained of tingling in his shoulders. Therefore, the Veteran should be afforded a VA examination to determine whether the Veteran has neuropathy of the upper extremities. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of the Veteran's bilateral eye disability. a. The examiner should opine to whether it is at least likely as not (50 percent or greater probability) that a currently diagnosed eye disorder to include cataracts had its onset during the Veteran's active duty service or is otherwise related to any in-service disease event, or injury to include exposure to herbicide agents. b. The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that a currently diagnosed eye disability to include cataracts is proximately due to or caused by the Veteran's service-connected diabetes mellitus type II. c. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that a currently diagnosed eye disability to include cataracts was aggravated (permanently worsened in severity beyond a natural progression) by the Veteran's service-connected diabetes mellitus type II. d. The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of any peripheral neuropathy of the upper and lower extremities. a. The examiner should opine to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's peripheral neuropathy of the lower extremities had its onset during the Veteran's active duty service, was manifest within one year of active service, or is otherwise related to any in-service disease event, or injury to include exposure to herbicide agents. b. The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's peripheral neuropathy of the lower extremities is proximately due to or caused by the Veteran's service-connected diabetes mellitus type II. c. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) the Veteran's peripheral neuropathy of the lower extremities was aggravated (permanently worsened in severity beyond a natural progression) by the Veteran's service-connected diabetes mellitus type II. d. The examiner should render an opinion as to whether it is at least as likely as not (50 percent probability or greater) the Veteran has at present, or at any time during the appeal period, peripheral neuropathy of the upper extremities. e. If the examiner finds that the Veteran currently has peripheral neuropathy of the upper extremities then the examiner should render an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the peripheral neuropathy of the upper extremities had its onset during the Veteran's active duty service, was manifest within one year of active service, or is otherwise related to any in-service disease, event, or injury to include exposure to herbicide agents. f. If the examiner finds that the Veteran currently (or during the appeal period) has peripheral neuropathy of the upper extremities then the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's peripheral neuropathy of the upper extremities is proximately due to or caused by the Veteran's service-connected diabetes mellitus type II. g. If the examiner finds that the Veteran currently (or during the appeal period) has peripheral neuropathy of the upper extremities then the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) the Veteran's peripheral neuropathy of the upper extremities was aggravated (permanently worsened in severity beyond a natural progression) by the Veteran's service-connected diabetes mellitus type II. h. The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, 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). (Continued on the next page) 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. L. Kennedy 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).