Decision Date: 08/25/95 Archive Date: 08/25/95 DOCKET NO. 93-18 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES Entitlement to service connection for left carpal tunnel syndrome and cervical radiculopathy. Entitlement to increased evaluations for lumbosacral strain and cervical strain, each currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran served on active duty from September 1972 to September 1976. An April 1977 Regional Office (RO) decision denied service connection for left carpal tunnel syndrome, and the veteran was notified of the outcome of this determination later in that month. He did not timely appeal. In 1991, the veteran requested increased (compensable) ratings for his service-connected lumbosacral strain and cervical strain, and, in 1992, he requested reopening of the claim for service connection for left carpal tunnel syndrome and service connection for cervical radiculopathy. This appeal arises from 1991 and 1992 rating decisions by the Department of Veterans Affairs (VA) RO in New Orleans, Louisiana, that determined that no new and material evidence had been submitted to reopen the claim for service connection for left carpal tunnel syndrome, that denied service connection for cervical radiculopathy, and increased the ratings for the service-connected upper and low back disorders from zero to 10 percent. The veteran has appealed these decisions to the Board of Veterans' Appeals (Board). Since the RO's April 1977 decision, denying service connection for left carpal tunnel syndrome, VA medical records have been received that now show the presence of left carpal tunnel syndrome. These records, when considered with the other evidence of record in 1977, raise a reasonable possibility of a change in the prior decision and are considered new and material evidence. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994); Colvin v. Derwinski, 1 Vet.App. 171 (1991). Hence, the Board will consider service connection for left carpal tunnel syndrome on a de novo basis. The matter of pension or unemployability is referred to the RO for appropriate action. REMAND The record shows that the veteran's claims are well- grounded, meaning they are plausible. 38 U.S.C.A. § 5107(a) (West 1991). VA has a duty to assist him in developing facts pertinent to well-grounded claims. The duty to assist includes obtaining all relevant medical evidence and providing an adequate VA examination. Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). There is a further VA duty to assist him in this case. The record shows that various pieces of evidence have been received since the issuance of the last supplemental statement of the case in December 1992 and such evidence is relevant to the issues being considered in this appeal. The veteran has not waived initial consideration of all of this evidence, including the report of VA examination of the veteran's spine in January 1993. Due process requires that the RO initially consider this evidence and issue a supplemental statement of the case discussing it. 38 C.F.R. § 20.1304(c) (1994). Statements from the veteran, including testimony at a hearing before the undersigned sitting at the RO in August 1993, indicate that he is claiming service connection for lumbar and cervical radiculopathy. A May 1993 RO decision denied service connection for these disorders without notifying him, finding that they were non-service-connected conditions. This matter is "inextricably intertwined" with the claim for an increased rating for lumbosacral strain, and these claims should be adjudicated simultaneously. Harris v. Derwinski, 1 Vet.App. 180 (1991). A review of the record reveals that the veteran has had complaints of neurological dysfunction in his neck, low back, and left hand since service. The record also shows that essentially no neurological deficits were found on VA neurological examination in February 1977 and that private records of treatment in 1986 reveal that he injured his left arm at work in 1985 or 1986. However, the overall evidence raises a reasonable possibility that his current symptoms of cervical radiculopathy, lumbar radiculopathy, and left carpal tunnel syndrome are related to service or a service- connected disability. Under these circumstances, the duty to assist the veteran requires providing him with a VA neurological examination to determine the nature and extent of these disorders, and to obtain opinions from the examiner as to the etiology of these disorders. Horowitz v. Brown, 5 Vet.App. 217 (1993). The veteran also revealed during his testimony at the August 1993 hearing that he receives continuous treatment at the VA medical facility in New Orleans, Louisiana, and that Dr. Sirham and Dr. Ruiz of this facility had told him that his cervical radiculopathy, lumbar radiculopathy, and left carpal tunnel syndrome were attributable to service or a service-connected disability. Reports of such treatment and any medical opinions concerning the etiology of these disorders should be obtained and associated with the claims folder in conjunction with VA's duty to obtain reports of ongoing treatment and relevant medical records. Murincsak v. Derwinski, 2 Vet.App. 363 (1992); Murphy, 1 Vet.App. 78. Hence, the case is REMANDED to the RO for the following actions: 1. The RO should obtain reports of the veteran's treatment since 1992 from the VA medical facility in New Orleans, Louisiana, as well as any written opinions from Dr. Sirham and Dr. Ruiz concerning the etiology of the veteran's cervical radiculopathy, lumbar radiculopathy, and left carpal tunnel syndrome. 2. The RO should schedule the veteran for VA neurological examination to determine the nature and etiology of his cervical radiculopathy, lumbar radiculopathy, and left carpal tunnel syndrome. All indicated studies should be performed and all clinical findings reported in detail. The examiner should give fully reasoned opinions concerning the etiology of the veteran's cervical radiculopathy, lumbar radiculopathy, and left carpal tunnel syndrome, including an opinion as to whether it is at least as likely as not that there is any causal relationship between such disorders and the veteran's service-connected cervical strain and lumbosacral strain. The doctor should support his or her opinions by discussing medical principles as applied to medical evidence in the veteran's case. All indicated tests, including range of motion testing, measured in degrees, nerve conduction testing, and X-ray studies should be conducted. The examiner should indicate whether motion of the cervical and lumbar spine is slightly, moderately, or severely impaired; whether muscle spasm on extreme forward, and loss of lateral spine motion, unilateral, in a standing position are present on examination of the lumbosacral spine; and whether the lumbar strain has produced severe impairment. In order to assist the examiner in providing the requested information, the claims folder must be made available to the physician and reviewed prior to the examination. 3. After the above development, the RO should review the claims, including the claim for service connection for lumbar radiculopathy. If the claims are denied, an appropriate supplemental statement of the case should be provided to the veteran and his representative, covering all evidence considered since issuance of the last supplemental statement of the case. They should be advised that a timely substantive appeal must be received concerning the denial of service connection for lumbar radiculopathy in order to receive appellate review of this matter. After the veteran and his representative are given an opportunity to respond to the supplemental statement of the case, the file should be returned to the Board. M. CHEEK 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) (1994). - 2 -