Citation Nr: 1104133 Decision Date: 02/01/11 Archive Date: 02/14/11 DOCKET NO. 06-14 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a bilateral wrist condition, claimed as carpal tunnel syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. dR. Dale INTRODUCTION The Veteran had active military service from September 1991 to January 1992, and from February 2003 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In a recent decision, the United States Court of Appeals for Veterans Claims (Court) addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons the Court held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. In light of the Court's decision in Clemons, the Board has re-characterized the issue on appeal as entitlement to service connection for bilateral wrist condition, claimed as carpal tunnel syndrome. This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran's claim for service connection was previously remanded by the Board in May 2009 and March 2010 for further development. As will be further discussed below, the Board finds that the agency of original jurisdiction (AOJ) did not substantially comply with the remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Consequently, the Board regrettably must again remand this case. In particular, the May 2009 remand order instructed that the Veteran should be accorded a VA examination to address possible application of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 in regard to undiagnosed illnesses. The examiner was requested to follow the established protocol for undiagnosed illness examinations. In July 2009 the Veteran was accorded a compensation and pension (C&P) peripheral nerves examination. During the examination the Veteran reported the same symptoms as previous examinations, such as severe pain in the left arm described as burning, numbing, and cramp-like. The examiner found no evidence of carpal tunnel syndrome but found that the symptoms described the Veteran were clinically more compatible with the service-connected upper extremity radiculopathy. The March 2010 Board remand determined that the July 2009 examination did not comport to the instructions in the May 2009 remand and sent the case back for a new C&P examination and instructed the examiner to follow the established protocol for undiagnosed illness examinations. In March 2010, the Veteran was accorded a C&P examination that complied with Gulf War guidelines. During the examination, the Veteran reported that his bilateral wrist pain developed while in Iraq. He reported that it was associated with constant hanging from a transportation truck from the handrails. The diagnosis revealed that there was no pathology found that could explain the Veteran's complaint of bilateral wrist pain. The examiner noted that because no pathology was found, an opinion concerning a bilateral condition in relation to the Veteran's military service could not be rendered. Once the Secretary undertakes to provide an examination, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As it remains unclear whether the Veteran's symptoms are part of his service-connected upper extremity disabilities or a result of other factors, the Veteran should be accorded a new C&P examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that the duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (holding that the examiner "must consider the records of prior medical examinations and treatment in order to assure a fully informed examination"). Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC., for the following action: 1. Schedule the Veteran for a VA examination to ascertain the nature of a claimed bilateral wrist disability. The claims folder must be made available to, and reviewed by, the examiner. All indicated tests should be performed, and all findings reported in detail. Following the examination, the examiner is asked to state whether there are any symptoms or manifestations affecting the wrists that are not attributable to (i.e., not part and parcel of) the service connected bilateral upper extremity radiculopathy disability. If so, the examiner is specifically requested to state whether the Veteran has a right wrist and left wrist disorder, for example, a joint disorder (see June 30, 2004, medical statement indicating that orthopedic tests were suggestive of carpal bones derangements on the left). If so, the examiner must opine as to whether it is less likely than not (less than a 50 percent probability) or at least as likely as not (50 percent probability or greater) that said disorder is related to active military service, to include but not limited to the Veteran's credible report that he was injured in service while hanging on to a truck. If there are symptoms and/or manifestations that are not attributable to the service-connected disabilities of the upper extremities, and a diagnosis cannot be provided, state whether there are signs and symptoms that represent an undiagnosed chronic illness due to muscle pain, joint pain, etc. A complete rationale for each opinion must be provided. 2. Ensure that the information and opinions provided by the examiner satisfy the criteria above and, if not, return the report as insufficient. Then readjudicate the Veteran's claim after ensuring that any other development deemed warranted is complete. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are 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.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ S. S. TOTH 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).