Citation Nr: 1304253 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 06-38 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for disability of the right arm, claimed as radial nerve pain. REPRESENTATION Appellant represented by: Amy B. Kretkowski, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from August 2002 to January 2003, and from February 2003 to May 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. This matter was previously before the Board in August 2011 when the Board denied the Veteran's claim. The Veteran appealed the August 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in June 2012, the Court remanded the case to the Board for development consistent with a Joint Motion for Remand. The Veteran provided testimony at a June 2009 hearing before the undersigned Veterans Law Judge. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for disability of the right arm, claimed as radial nerve pain. The Board notes that the Veteran is already service-connected for residuals of a right wrist injury to include mild carpal tunnel syndrome, restrictive tenosynovitis of the right thumb, and status post open posterior stabilization with capsulorrhaphy, with residual right shoulder impingement and instability. The Veteran filed her current claim for entitlement to service connection for disability of the right arm, claimed as radial nerve pain, in May 2004. Since that time, she has been diagnosed as having thoracic outlet syndrome of the right arm while receiving treatment at the Orthopedic Institute of Illinois, in Peoria, Illinois. Specifically, a September 2006 progress note diagnosed the Veteran's pain and numbness of the right forearm primarily as thoracic outlet syndrome. In addition, a January 2007 correspondence from her private physician contained a diagnosis of thoracic outlet syndrome. In August 2009, the Board found that it did not have the medical expertise to determine whether the disability for which the Veteran sought service connection was attributable to thoracic outlet syndrome or C5-6 disc disease of the cervical spine, or whether or the extent to which either of those conditions may be related to her period of active service or currently service-connected disability of the right shoulder. Accordingly, the Board obtained a VA joints examination and opinion to address these complex medical matters. The Veteran was afforded a VA joints examination in December 2009, at which time the Adson's test for thoracic outlet syndrome was negative, bilaterally. Rather, she was diagnosed as having an old ulnar styloid fracture and pain in the right wrist, pain without any other findings in the right elbow, and status post surgery and reinjury at least 2 times since service separation in the right shoulder. In a September 2010 addendum, the VA examiner explained that her December 2009 clinical examination did not show any positive signs for thoracic outlet syndrome, and that clinical sensory and motor examinations done previously had not shown any sensorimotor deficits. As such, in an August 2011 decision, the Board found that the competent, credible medical evidence of record was against a finding that the Veteran had thoracic outlet syndrome, and held that a chronic arm disability, manifested by pain and separate and apart from the Veteran's service-connected residuals of a right wrist injury, were not incurred in, or aggravated by, active duty service. The Veteran appealed this decision to the Court and, in June 2012, a Joint Motion was issued finding that the Board failed to provide an adequate statement of reasons or bases for its determination that there was not a right-arm disorder separate and apart from the Veteran's service-connected disabilities. The Joint Motion cited the previous diagnoses of thoracic outlet syndrome, and emphasized that the December 2009 VA examiner, although noting that there was no thoracic outlet syndrome at the time of the examination, did not refute the previous diagnoses of thoracic outlet syndrome contained in the record. Indeed, the requirement of a current disability is met when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). The December 2009 VA examiner was not clear as to whether the prior indications of thoracic outlet disorder were mere misdiagnoses or whether the disorder had resolved prior to the time of the December 2009 examination. Accordingly, a new VA examination must be conducted. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify all records of VA and non-VA health care providers who treated her disability of the right upper extremity prior to service, and during the period from May 26, 2003 (the date of her injury in Iraq) to the present. After obtaining any appropriate authorizations for release of medical information, the RO should obtain records from each health care provider the Veteran identifies. The Veteran should also be advised that with respect to private medical evidence she may alternatively obtain the records on her own and submit them to the RO. The records sought should include those from the Orthopedic Institute of Illinois, in Peoria, Illinois. 2. Once all available medical records have been received, make arrangements with the appropriate VA medical facility for the Veteran to be afforded a VA examination with an appropriate physician for the purpose of determining the following: * Whether it is at least as likely as not (whether there is a 50 percent or greater probability) that any disability of the right upper extremity (that is NOT currently service-connected), which is currently clinically demonstrated or has been clinically demonstrated of record at any time since receipt of the claim for service connection in May 2004, to include thoracic outlet syndrome diagnosed in September 2006 and January 2007, began during service or is related to some incident of service, or is caused or aggravated (permanent worsening of underlying condition) by service-connected status post open posterior stabilization with capsulorrhaphy, with residual right shoulder impingement and instability? Send the claims files to the examiner for review. The examiner should indicate that the claims files were reviewed, to include the September 2006 diagnosis of thoracic outlet syndrome as well as the correspondence dated in January 2007 from a private physician at the Orthopedic Institute of Illinois, indicating the Veteran had a current diagnosis of thoracic outlet syndrome and had reported a temporal relationship between her right arm numbness and her in-service fall on May 27, 2003. In conducting the examination, the examiner should seek a description from the Veteran of the nature of the disability of the right upper extremity for which she currently seeks service connection, apparently for pain and associated impairment in the area between the shoulder and elbow. The examiner should describe the nature and extent of any such disability found. If thoracic outlet syndrome is not found on examination, the examiner must provide an opinion as to whether thoracic outlet syndrome was medically shown at any time during the period of appeal, from May 9, 2004, to the present. Specifically, the examiner is asked to comment upon the diagnoses of thoracic outlet syndrome rendered in September 2006 and January 2007. If thoracic outlet syndrome is found not to be present, it must be indicated whether such disability resolved, or whether the previous diagnoses were not medically sound. The examiner is requested to provide a complete rationale for his or her opinions, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. 3. Readjudicate the issue on appeal. If the benefit sought remains denied, the appellant and her representative should be provided a supplemental statement of the case and an appropriate period of time for response. The appellant 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. 2012). _________________________________________________ U. R. POWELL 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).