BVA9504863 DOCKET NO. 91-40 702 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased evaluation for peripheral neuropathy of the right lower extremity, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for peripheral neuropathy of the left lower extremity, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The appellant and his son ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The veteran had active service from March 1941 to February 1943. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 1989 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Following a Board remand in February 1992, a hearing was held before a hearing officer at the RO in April 1992. In a rating decision dated in July 1992, the August 1989 rating decision was amended in order to implement retroactively an increased rating from no percent to 10 percent for peripheral neuropathy of the right lower extremity and from no percent to 10 percent for peripheral neuropathy of the left lower extremity. (The veteran also has service connection for pes planus, currently rated as 50 percent disabling, and inactive minimal pulmonary tuberculosis, rated as noncompensably disabling. With consideration of the bilateral factor, his combined disability rating was increased from 50 percent to 70 percent, effective May 23, 1989.) The case was again remanded by the Board in February 1994. It noted that the veteran should be accorded VA neurologic and rheumatologic examinations. The case has been returned to the Board for further review. REMAND The threshold inquiry in all cases is whether the veteran's claim is well grounded. Under 38 U.S.C.A. § 5107 (West 1991), a person who submits a claim to VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. If the person meets this burden, VA is obligated to assist in developing facts pertinent to the claim. A well-grounded claim is one that is plausible, that is, meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 80 (1990). There must be more than a mere allegation, rather, the claim must be accompanied by evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In this case, the veteran has complained that the peripheral neuropathy of his lower extremities has increased in severity. This is sufficient to establish that there is a well-grounded claim. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Board now turns to a question of whether the duty to assist the veteran in the development of his claim has been fulfilled. In its February 1994 remand, the Board noted that the veteran had claimed entitlement to service connection for hearing loss and entitlement to a total rating based on unemployability by reason of service-connected disabilities. At that time these matters had not been fully developed for appellate review. Pursuant to the Board's remand, these matters were developed by the RO, with a statement of the case issued in August 1994. However, the claims folder was transferred back to the Board by the RO without first referring the file to the veteran's representative for further action. The veteran's substantive appeal was received in October 1994 and a copy of it and the representative's argument dated in December 1994 were sent to the Board, where they were received in December 1994. The statement of the case done in August 1994 failed to address the question of whether new and material evidence had been submitted sufficient to reopen a claim of entitlement to service connection for hearing loss of the left ear due to INH therapy. This specific issue was addressed by the RO and denied in a June 1978 rating decision. The veteran was informed of the denial in a letter dated in August 1978. A timely appeal did not ensue. The RO needs to address the issue of service connection with regard to the left ear on the basis of whether new and material evidence has been submitted sufficient to reopen the claim. With regard to the claim for increased ratings for peripheral neuropathy of each lower extremity, the examination the veteran was accorded by VA in March 1994 failed to include electromyography testing and nerve conduction testing. The clinical examination which was done resulted in a description of severe peripheral neuropathy. However, this was stated as being of unclear etiology. The examiner questioned how much, if any, of the veteran's neuropathy was actually attributable to the INH therapy. He stated it was not clear whether a direct correlation between the INH therapy for the veteran's service-connected pulmonary tuberculosis residuals and the peripheral neuropathy actually existed. Further complicating the picture is a notation of the presence of a somatoform disorder. When the veteran was seen in outpatient consultation in March 1993, the peripheral neuropathy was described as only mild in degree. Notation was made at that time of undifferentiated somatoform disorder. This diagnosis was also made during VA hospitalization of the veteran from October to November 1990, at which time testing included electromyogram examination and psychological testing. Observation of the veteran during hospitalization reflected that he was seen to walk with no assistive device and to have a normal gait. The veteran's peripheral neuropathy was described as mild in degree during the hospitalization. This is in contrast to the most recent VA examination and an August 1993 statement from a resident in the neurology department of the VA Medical Center in Long Beach, California. That physician expressed the opinion that the veteran had severe degeneration of the nerves in all four of his limbs due to treatment with tuberculosis medication a number of years earlier. The individual further remarked that this also resulted in muscle wasting and had confined the veteran to a wheelchair. From the above, it is difficult to determine how much, if any, of the service-connected peripheral neuropathy of the lower extremities is attributable to the INH therapy the veteran had a number of years ago. The Board believes that a neurological examination with electromyogram and nerve conduction studies would be helpful in clarifying the extent of impairment attributable to the service-connected INH therapy. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should arrange for a VA neurologic and psychiatric examination of the veteran to determine the nature and extent of any peripheral neuropathy of the lower extremities currently present. All indicated studies, to include electromyogram testing, nerve conduction studies, and psychological testing, should be performed. The neurologist should discuss the etiology of the peripheral neuropathy and provide an opinion as to whether or not it can be traced to the INH therapy the veteran received for his service-connected tuberculosis many years ago. The rationale for any opinion expressed should be fully explained. The examination should be conducted by a neurologist who has not previously examined the veteran. The claims folder should be made available to each examiner prior to examination. 2. Thereafter, the RO should readjudicate the issues as listed on the title page of this decision. It should also take further action with regard to the veteran's claims for hearing loss and for a total rating based on unemployability by reason of service-connected disabilities. If the veteran disagrees with any of the decisions of the RO, and if otherwise appropriate, a supplemental statement of the case should be issued for all issues in appellate status, to include the provisions of 38 C.F.R. § 3.156 (1993), and the veteran and his representative should be provided an opportunity for response. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RICHARD B. FRANK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).