Citation Nr: 1234919 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 07-02 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a right hand disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and K.E. ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from January1979 to January 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2010, the Veteran and a friend, "K.E.," testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In May 2010, the Veteran's representative raised the issues of service connection for an acquired psychiatric disorder, bilateral knee, ankle, and foot disorders, a back disability, a sinus disorder, chronic obstructive pulmonary disease, upper and lower extremity arthritis, and hypertensive vascular disease. The claims file is absent for evidence that these issues have not been adjudicated by the RO, and therefore the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. 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 A remand is necessary in this case so that VA can comply with its duty to assist the Veteran by providing a medical examination and obtaining an adequate expert opinion as to the etiology of any right hand disability. See 38 U.S.C.A. § 5103A(d) (West 2002). In December 2010, the Board remanded this issue for that development. The examination conducted and opinion obtained pursuant to that remand are not adequate, thus necessitating this remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (explaining that once VA provides an examination or obtains an expert opinion it must ensure that the examination and/or opinion are adequate). A claimant is entitled as a matter of law to compliance with the terms of a Board remand. Stegall v. West, 11 Vet. App. 268 (1998). As there has not been substantial compliance in this case, another remand is necessary. In order to be adequate, an expert opinion must be supported by an analysis that the Board can weigh against other evidence. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Most of the value of medical opinion lies in its reasoning, and a medical opinion that contains only data and conclusions is not entitled to any probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In December 2010, the Board remanded this matter, in part, to obtain an expert opinion as to whether it is at least as likely as not that the Veteran's right hand carpal tunnel syndrome (CTS) had onset during his active military service or is otherwise related to any incident thereof, including claimed injury and frostbite. VA provided the examination later that same month. The examiner listed a relevant history and results of physical examination. He then diagnosed CTS, "by history only" and gouty arthritis involving not only the hands but also the knees. His expert opinion consisted of only the following: "It is not at least as likely as not that the veteran's complaints of his hands are related to cold injury or service. It is more likely related to gouty arthritis." This opinion contains no explanation. Rather it consists of two conclusions. The rest of the examination report consists of facts. The opinion is therefore inadequate. Furthermore, in the December 2010 remand, the Board directed that the examiner must discuss specific items of evidence. The examiner did not mention those items of evidence. August 1982 service treatment notes document that the Veteran complained of pain of the right hand post trauma times one week. Assessment was mild tendon strain. A radiographic report from that same day includes as pertinent history that the Veteran had trauma to the hand and pain at the carpal metacarpal area. The x-ray finding was a normal right hand. Post service, the Veteran was seen in the VA outpatient clinic in April 2004 with complaints of numbness and tingling in both arms, primarily in his forearms. Another note from that same date documents his report that he was painting his house over the weekend and, as of the clinic visit, had numbness and tingling in his hands, left arm, and left leg. June 2004 VA treatment notes document the Veteran's report of numbness of the right hand consistent with carpal tunnel syndrome. An August 2004 electromyography study yielded an impression of mild bilateral carpal tunnel syndrome, (left greater than right). A June 2006 neurology note documents that the Veteran had positive Tinel's signs of both wrists and the impression was bilateral CTS. During the April 2010 Board hearing and in the context of his claim of entitlement to service connection for hand disability, he testified that he has broken all of his bones. April 2010 Board hearing transcript at 13. He testified that he had numbness of his hands during service. Id. at 4. He expresses his belief that his current CTS is due to repetitive motion working as a mechanic during service. Id. at 9. In a January 2011 statement, the Veteran reported that his hands were mangled by equipment that he maintained as a mechanic during service and expressed his belief that this has resulted in his current claimed disability. In that statement he reported that during basic training in 1979 he suffered severe frostbite of his hands, feet and legs, that the medical personnel wanted to amputate his extremities, and that his such frostbite resulted in his current claimed right hand condition. In the December 2010 remand, the Board directed the examiner to comment on the August 1982 treatment notes, post-service March 1987 and February 1990 military examination reports, Dr. "M.P."' May 2003 examination report, and June and August 2004 VA evaluation and electromyography reports. Upon reflection, the Board has determined that the more appropriate direction is that the examiner review and comment on the August 1982 service treatment notes documenting complaints of right hand pain, the June 2004, August 2004, and June 2006 VA findings of CTS, and the Veteran's reports as to why he believes service connection is warranted found in the January 2012 written statement as well as his testimony, in particular at pages 9 through 13 of the April 2010 Board hearing transcript. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (explaining that the Board has a "duty to procure evidence in an impartial, unbiased, and neutral manner"). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of any current right hand disability, including his diagnosed CTS, and any relationship between such disability and his active service. The claims file must be made available to the examiner, the examiner must review the entire claims file in conjunction with the examination, and the examiner must annotate his or her report as to whether the claims file was reviewed. That review must include review of this entire remand, including the explanatory text preceding the directives. The examiner must address the following: (a) Identify any disability of the Veteran's right hand that is present in addition to his CTS. (b) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current disability of the Veteran's right hand, including CTS, had onset during or was caused by his active military service. The examiner must specifically address the August 1982 service treatment notes documenting his complaints of right hand pain, the June 2004, August 2004, and June 2006 VA findings of carpal tunnel syndrome, and the Veteran's reports as to why he believes service connection is warranted found in the January 2012 written statement as well as his testimony, in particular at pages 9 through 13 of the April 2010 Board hearing transcript. The examiner must provide a complete rationale for any and all conclusions reached. Merely stating that the condition did or did not have onset during active service or was or was not caused by active service is inadequate. Similarly, a conclusory statement that his disability is due to some other cause without explaining, in detail, why that is the case, is also inadequate. 2. Notify the Veteran that it is his responsibility to report for the scheduled VA examination and to cooperate in the development of the claim. Notify him that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2011). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 4. Then, readjudicate the claim on appeal. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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. 2011). _________________________________________________ FRANK J. FLOWERS 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) (2011).