Citation Nr: 1126549 Decision Date: 07/14/11 Archive Date: 07/21/11 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 (CTS) 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 a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The case was brought before the Board in March 2010, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim, to include affording him a VA examination. The requested development having been partially completed, the case is once again before the Board for appellate consideration of the issue on appeal. In this case, the Veteran has indicated in his own statements and submitted multiple statements from his private physician that due to his CTS he cannot write, button his shirt, and do most daily functions. He further claims he ultimately had to quit his job working as a linotype operator for a newspaper in 1974 because of his right hand pain. The Board finds these statements reasonably raise a claim seeking total disability for individual unemployability. Thus the issue is referred to the RO for appropriate action. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran submitted an additional statement from his private physician dated April 2011 after the file was sent to the Board. A supplemental statement of the case (SSOC) was not issued by the agency of original jurisdiction (AOJ), but this is not necessary because the Veteran waived local jurisdictional review of the evidence via a May 2011 statement from his representative. The issue of entitlement to service connection for diabetes mellitus, type II, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 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 When the Board last remanded this claim, it was in part to allow the AOJ to adjudicate all inextricably intertwined issues. That is, the RO determined in a March 2009 rating decision based on the medical evidence, the Veteran's right hand CTS is only "partially" attributable to the Veteran's service connected gunshot wound (GSW) residuals of the left hand, but also attributable to non-service connected diabetes mellitus, type II. The medical evidence up to that point showed the Veteran heavily relied on his right hand due to an inability to use his left hand as a result of service-related GSW. The Veteran developed right hand pain, arthritis of the fingers, arthritis of the wrist and neurological abnormalities of the right wrist. The Veteran submitted multiple statements from his private physician that these manifestations were all attributed to overuse of the right hand. The Veteran was service-connected for arthritis of the fingers and wrist. With regard to neurological abnormalities, however, VA examiners in December 2008 and in June 2010 opined that the Veteran indeed has CTS, but his CTS is mainly attributable to the Veteran's non-service connected diabetes mellitus, type II. The examiner explained the Veteran did not develop CTS until 2007, decades after service and after being diagnosed with diabetes, and the nerves affected are independent of the Veteran's currently service-connected arthritis. Specifically, the examiner opined both in 2008 and 2010 that the Veteran's service-related factors were only responsible for 30% of the severity of the Veteran's CTS whereas the Veteran's diabetes was responsible for 70% of the severity of the Veteran's CTS. For this reason, although the RO found the Veteran to meet the 30 percent criteria under DC 8515, the RO assigned a 10 percent rating finding the Veteran's disability was only partially attributable to service-related factors. See 38 C.F.R. § 3.310(b) (indicating in cases of disabilities found to be aggravated by a service-connected disability, the RO will determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level). In a January 2010 statement, the Veteran's representative indicated the Veteran believes his diabetes is service-related to cold weather exposure while serving in Korea. In the Board's prior March 2010 remand, the Board indicated this new claim was "inextricably intertwined" with the increased rating claim on appeal here because the rating here is partially determined on the premise that the Veteran's diabetes is a non-service-related factor causing CTS. For these reasons, in the March 2010 Board remand, the Board indicated the diabetes claim must be developed and adjudicated prior to the disposition of this issue on appeal. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding all issues "inextricably intertwined" with an issue certified for appeal, are to be identified and developed prior to appellate review). Unfortunately, it does not appear the AOJ developed or adjudicated the Veteran's claim seeking service connection for diabetes mellitus, type II. Accordingly, this claim must be remanded because the disposition of the Veteran's claim seeking entitlement to service connection for diabetes mellitus, type II, will have a direct impact on the disposition of the claim here. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As noted in the introduction, the Veteran recently submitted a statement by his private physician, Dr. Aaron, dated April 2011 indicating the Veteran's CTS is "severe" preventing his ability to work. Specifically, Dr. Aaron indicates the Veteran cannot write, button his shirt, grasp objects or complete other typical daily tasks. The Veteran also indicated during a November 2007 VA examination that because of right hand pain he was forced to quit his job as a linotype operator for a newspaper in 1974. In contrast, the June 2010 examiner describes the Veteran's CTS disability as "moderate" and does not make similar findings with regard to functional loss. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). In this case, in light of the April 2011 medical evidence, the Board finds a new VA examination is necessary to ascertain the current severity of the Veteran's disability. The AMC should also take this opportunity to obtain recent VA outpatient treatment records from April 2010 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) (2010). 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 April 2010 to the present. Any negative responses should be documented in the file. 2. Ask the Veteran to complete release forms authorizing VA to request any missing treatment records from Dr. A or any other private provider, for any right wrist/hand treatment and diabetes mellitus 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 the current severity of the Veteran's service-connected right wrist carpal tunnel syndrome. 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 as to whether the Veteran's diabetes mellitus, type II, is related to a disease or injury in service, to include cold weather exposure in Korea. The claims folder must be reviewed by the examiner and the examiner should provide a complete rationale for any opinion given without resorting to speculation, resolving any conflicting medical opinions rendered and specifically resolving the conflicting opinions from Dr. Aaron regarding the severity of the Veteran's CTS. Complete rationale (without resort to speculation) should be given for all opinions expressed. 4. After the above is complete, and after all inextricably intertwined claims are developed and adjudicated, to include the issue of entitlement to service connection for diabetes mellitus, type II, 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) (2010).