Citation Nr: 1805708 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 12-08 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a neurological disorder, including peripheral neuropathy of the upper and lower extremities, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Vieux, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In March 2015, the Board determined that the Veteran had not submitted new and material evidence to reopen a claim for service connection for peripheral neuropathy. That decision was vacated by the Court of Appeals for Veterans Claims (Court) in a September 2016 memorandum decision. The Court found that the Board must ascertain whether the Veteran's current claim of entitlement to service connection for diabetic neuropathy of the upper and lower extremities constitutes an independent claim or whether it is to be considered as part of his previously denied claim of entitlement to service connection for neuropathy secondary to Agent Orange exposure, which is acute and subacute peripheral neuropathy. In May 2017, the Board found that the Veteran's current claim for diabetic neuropathy of the upper and lower extremities constitutes a new and distinct claim, and remanded the claim for additional development, which has been completed. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND As noted, the claim was remanded for an examination to determine whether the Veteran had any neurologic disorders, to include (but not limited to) peripheral neuropathy of the bilateral upper extremities related to service or his service-connected diabetes. The July 2017 VA examiner noted that the Veteran has diagnoses of peripheral vascular disease in the legs (atherosclerotic disease/claudication, with clear risk factors) and carpal tunnel/cubital tunnel issues in the upper extremities, with surgery on the left in 2011. The examiner indicated that in light of these diagnoses, "there are clear etiologies concerning neuropathic symptoms." Further, the examiner opined that there is no valid reason why his neurological complaints/neuropathies would be due to his active period of service because there are clear causations for these symptoms. In addition, he indicated that whether diabetes is truly aggravating any neuropathy symptoms beyond natural progression is impossible to determine because the Veteran's diabetes is very mild and he has more overwhelming medical comorbidities that would cause his neuropathies, rather than diabetes alone. The VA examiner's opinion requires clarification as it does not address the etiology of the carpal tunnel/cubital tunnel issues in the upper extremities; and does not clearly distinguish between proximate causation and aggravation as it relates to the diabetic neuropathy. On remand, the examiner is asked to opine as to whether the carpal tunnel/cubital tunnel issues in the upper extremities are related to service or to the service-connected diabetes. As it relates to the diagnosed peripheral neuropathy of the upper and lower extremities, the examiner appears to suggest that while this condition is primarily due to peripheral vascular disease in the legs and carpal tunnel/cubital tunnel issues in the upper extremities, diabetes may also have been a contributing factor in its development. The examiner stated that the Veteran "has more overwhelming medical comorbidities that would cause his neuropathies, rather than diabetes alone." (Emphasis added). This statement suggests that his diabetes by itself did not cause his peripheral neuropathies, but could have caused the peripheral neuropathies in conjunction with his other conditions. The Board also notes that the examiner's opinion was proffered in the context of answering the question of aggravation, and there seems to be no real distinction made between the two. A clear statement addressing proximate causation and aggravation is needed. Further, the examiner stated, "[w]ith his diabetes being very minimal, one has to wonder whether any neuropathic complaints DO NOT have any relationship/are a result of diabetes, as the diabetes appears to be mild and likely managed with diet alone." This statement does not definitively indicate that diabetes is not caused by his peripheral neuropathies. In addition, a fully-explained rationale on why the Veteran's diabetes being mild makes it impossible to determine if his diabetes aggravated his peripheral neuropathies is necessary. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that he identify any private medical providers that may have records relevant to his claim that are not already of record. Obtain and associate with the claims file any non-duplicative, relevant outstanding VA or private treatment records concerning the issue on appeal. All efforts should be documented and incorporated into the claims file, and the Veteran should be notified of any negative responses so that he may provide the records. 2. Obtain an addendum opinion from the VA examiner (or other qualified examiner, if unavailable) who provided the July 2017 examination. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were reviewed. No additional examination is necessary, unless the examiner determines otherwise. The examiner should note that this question requires two opinions: one for proximate causation and a second for aggravation. (a) Is it at least as likely as not (50 percent or better probability) that any neurological disorder, to include carpal tunnel/cubital tunnel issues in the upper extremities AND peripheral neuropathy of the upper and lower extremities, had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service, including exposure to Agent Orange. (b) If not directly related to service on the basis of question (a), is any neurological disorder, to include carpal tunnel/cubital tunnel issues in the upper extremities AND peripheral neuropathy of the upper and lower extremities, proximately due to, the result of, or caused by his service-connected diabetes mellitus? (c) If proximately due to, the result of, or caused by his service-connected diabetes mellitus, has any neurological disorder, to include carpal tunnel/cubital tunnel issues in the upper extremities AND peripheral neuropathy of the upper and lower extremities, been aggravated (made chronically worse or increased in severity) by diabetes mellitus? Also, please identify whether any increase in severity was due to the natural progress of the disease. The term 'aggravation' means a permanent increase in the claimed disability. It is an irreversible worsening of the condition beyond the natural clinical course and character due to the service-connected disability as contrasted to a temporary worsening of symptoms. If aggravation is found, then, to the extent possible, the examiner should attempt to establish a baseline level of severity of the peripheral neuropathy prior to aggravation by the diabetes. A fully-explained rationale for all opinions must be provided. If any of the requested opinions cannot be rendered without resorting to speculation, the examiner should clearly explain why that is so. 3. Then, readjudicate the appeal. If any benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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 (2014). _________________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).