Citation Nr: 1301320 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-31 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial compensable disability rating for right upper extremity neuropathy. 2. Entitlement to an initial compensable disability rating for left upper extremity neuropathy. 3. Entitlement to service connection for low back arthralgia, claimed as recurrent low back pain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from December 2002 to December 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Board's review of the claims file reveals that further development on the issues of entitlement to initial compensable disability ratings for right and left upper extremity neuropathy, as well as entitlement to service connection for low back arthralgia is warranted. In May 2007, the Veteran submitted claims of entitlement to service connection for right and left upper extremity neuropathy, which were granted in December 2007. Initial noncompensable ratings were assigned for the Veteran's service-connected right and left upper extremity neuropathy, each effective December 30, 2006. VA's duty to assist includes providing a thorough and contemporaneous medical examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The April 2009 VA peripheral nerves examination is too remote, and the evidence of record is otherwise inadequate to assess the present severity of the Veteran's right and left upper extremity neuropathy. In an August 2009 statement, the Veteran emphasized that he was told his condition was progressive. To ensure that VA meets its duty to assist, a contemporaneous examination is necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (c)(4) (2012). As such, the Board finds that a remand for a VA examination is warranted in order to obtain findings that are more recent. Finally, the evidence of record does not include any evidence demonstrating complaints of or treatment for right and left upper extremity neuropathy following the April 2009 VA examination. As such, the Board finds that a remand is also warranted in order to afford the Veteran the opportunity to submit or identify additional evidence in support of this appeal, to include relevant treatment reports, dated after April 2009, that are not already associated with his claims file. In May 2007, the Veteran also submitted a claim of entitlement to service connection for recurrent back pain that had its onset in 2005. In additional lay statements of record, the Veteran asserted that he had low back pain since his first deployment that became "more recurring" during his second deployment. He reported his belief that the back pain was caused by constant use of heavy body armor and ruck sacks during service. He also indicated that he spoke with a corpsman during service several times about back pain and was given Motrin to help with it. Service treatment records contained Post Deployment Health Assessments dated in January 2005 and September 2006, as well as a November 2006 Report of Medical History that showed complaints of recurrent back pain and muscle aches during deployment. Pursuant to this claim, he was afforded a VA examination in September 2007. As a result of the examination, the diagnosis was low back arthralgia. In an August 2009 statement, the Veteran asserted that he continued to have back pain and that the condition of his back would most likely continue to deteriorate. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In light of the cumulative record discussed above, to include the Veteran's competent and credible complaints of continued back pain, as well as the sheer amount of time that has elapsed since the September 2007 VA examination, the Board will afford the Veteran an additional VA examination in order to clarify the nature and etiology of his claimed low back disorder on appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include any relevant VA or non-VA treatment records. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded the appropriate VA examination to determine whether any low back disorder found is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any diagnosed low back disorder is related to the Veteran's active duty service. The examiner must also state whether any diagnosed low back disorder is due to or aggravated by any service-connected disorder. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The Veteran must be afforded the appropriate VA examination to determine the current severity of his service-connected right and left upper extremity neuropathy. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings should be reported in detail. The examiner must state whether there is any mild incomplete paralysis of either median nerve. The report prepared must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation must be obtained which shows that notice scheduling the examinations was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After the development requested has been completed, the RO must review the examination reports to ensure that they are in complete compliance with the directives of this Remand. If the reports are deficient in any manner, the RO must implement corrective procedures at once. 6. Once the above actions have been completed, and any additional development deemed necessary, the RO must re-adjudicate the Veteran's claims on appeal, taking into consideration all relevant evidence associated with the Veteran's claims file since the June 2009 statement of the case. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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) (2012).