Citation Nr: 1011102 Decision Date: 03/24/10 Archive Date: 03/31/10 DOCKET NO. 09-38 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an initial rating greater than 10 percent for carpal tunnel syndrome of the right wrist. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The appellant is a veteran who served on active duty from December 1948 to April 1952. This matter is before the Board of Veterans' Appeals (Board) on appeal from November 2007 and March 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends his right wrist carpal tunnel syndrome is not adequately rated. The RO has indicated that only 30 percent of the Veteran's right wrist carpal tunnel syndrome is recognized as service-connected, and has rated such as 10 percent disabling. In support of his claim, the Veteran has submitted several statements from his private physician indicating his right hand is completely unusable and is completely related to his military service. The Veteran's private physician, Dr. A, most recently submitted a statement in January 2010 indicating the Veteran's exposure to severe cold during his service in Korea caused severe damage to his right hand. Other evidence, to include a December 2008 VA examination, establishes that only a portion of the right hand disability is related to service. The Board finds that the most recent VA examination, conducted in December 2008, is inadequate for the purposes of evaluation. Most significantly, the Veteran is service-connected for right hand arthritis, but the examiner rendered the opinion presuming that right hand arthritis is a non-service-connected disability. A medical opinion based on incorrect factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Although the examiner's opinion is accompanied by a lengthy rationale, the Board further notes the examiner did not address Dr. A's numerous medical statements nor did the examiner reconcile those opinions with the one rendered in the report. Given this conflict in the record, a VA examination should be conducted to determine the severity and to what extent the veteran's current right wrist carpal tunnel syndrome is attributable to his service and/or his service-connected disabilities. The Veteran, within his representative's January 2010 statement, also contends his diabetes mellitus, type II, is service related due to cold weather exposure incurred in Korea. This issue, however, has never been addressed by the regional office. In light of the December 2008 VA examination opinion partially attributing the Veteran's right wrist carpal tunnel syndrome to his non-service-connected diabetes mellitus, type II, the Board concludes the issue of entitlement to service connection for diabetes mellitus, type II, is "inextricably intertwined" with the increased rating on appeal here. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Court has held that all issues "inextricably intertwined" with an issue certified for appeal, are to be identified and developed prior to appellate review. Id. The last Statement of the Case (SOC) specific to this claim was issued in September 2009. The January 2010 opinion from Dr. A was non-duplicative and relevant to the issue on appeal. The Veteran's representative, in a January 2010 statement, further indicates the Veteran underwent an examination of his right hand in January 2010 that is not currently of record. The Veteran, through his representative in a January 2010 statement, explicitly requests a remand to obtain the recent medical evidence and for local jurisdictional review of Dr. A's most recent letter. The Veteran explicitly did not waive local jurisdictional review of the newly submitted medical evidence. This evidence was submitted within 90 days of certification of appeal. The case is returned to the RO for consideration and the issuance of a supplemental statement of the case. 38 C.F.R. § 20.1304. The RO should also take this opportunity to obtain VA outpatient treatment records from September 2009 to the present. 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) (2009). Expedited handling is requested.) 1. Obtain any medical records and hospitalization records for the Veteran's right wrist carpal tunnel syndrome from the VA Medical Center in Lexington, Kentucky for the time period from September 2009 to the present. Any negative responses should be documented in the file. 2. Ask the Veteran to complete release forms authorizing VA to request his treatment records from Dr. A, his indicated January 2010 examination, or any other private provider, for any right wrist/hand treatment received not currently of record. These medical records should then be requested, and the RO should specify that actual treatment records, as opposed to summaries, are needed. All efforts to obtain these records, including follow-up requests, if appropriate, should be fully documented. 3. After the above development is complete and the records are obtained, to the extent available, schedule the Veteran for a neurological VA examination to ascertain whether it is at least as likely as not that the Veteran's service- connected right wrist carpal tunnel syndrome was caused or aggravated by service and/or a service-connected disability, and to ascertain how severe this condition is. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. Application of 38 C.F.R. § 4.40 regarding functional loss due to pain and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination or pain on movement of a joint should be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The examiner is also asked to provide an opinion reconciling the likely etiology of the Veteran's right wrist carpal tunnel syndrome. The examiner is asked to opine on the following matters: Is the Veteran's right wrist carpal tunnel syndrome wholly (100 percent) related to his service and/or his service-connected disabilities, to include inservice cold exposure and over-sue to his service- connected gun shot wound residuals of the left arm? If not, is the Veteran's right wrist carpal tunnel syndrome partially related to his service and/or service-connected disabilities; please allocate the approximate percentage attributable to service versus non-service related factors. It would be helpful if the examiners would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided, reconciling all conflicting medical opinions to include the December 2008 VA examination report and Dr. A's statements. 4. After the above is complete, and after all inextricably intertwined claims are developed and adjudicated, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. The claim must be afforded expeditious treatment. _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).