Citation Nr: 1304987 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 06-25 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a neurological disability of the right upper extremity, to include as secondary to left median neuropathy. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to September 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2005 and December 2005 rating decisions of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO). A review of the Virtual VA paperless claims processing system reflects that additional records have not been added to the present appeal. The Veteran testified at a hearing at the RO before a Veterans Law Judge of the Board (Travel Board hearing) in June 2008. A transcript of that hearing has been associated with the claims file. This Veterans Law Judge has since retired and the Veteran was offered an opportunity for a new hearing, which was held in October 2012. This case was previously remanded by the Board in September 2008, June 2010, and July 2012 for further development and due process requirements. 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 Although the Board regrets any further delay in adjudicating the Veteran's claim, pursuant to the duty to assist, the issue of service connection for a neurological disability of the right upper extremity, to include as secondary to a neurological disability of the left upper extremity, must be remanded for further development. In June 2010, the Board remanded the Veteran's claim. The Veteran was sent notice of the date of the examination to his current address. See June 2010 Notice to Veteran and VA Medical Center (VAMC) letter to Veteran. The Veteran failed to report to an August 2010 VA examination. In both a September 2011 letter and a January 2012 informal hearing presentation, the Veteran's representative reported that the Veteran was out of town due to an emergency and did not receive the VA notice to report for an examination until after he arrived back in town. A new examination was requested. The Veteran reiterated in the October 2012 video conference hearing that he was out of town and could not make the examination and reported that he would be willing to come for another examination of he were scheduled for one. The Veteran is service-connected for left median neuropathy. Service treatment reports reflect that the Veteran complained of his hands cramping up after pulling on a cable all day in an April 1981 service treatment report. At that time he was diagnosed with muscle cramps of unknown etiology. The Veteran was involved in an automobile accident in September 1982 with residuals to the right lower extremity and left rib, however no upper extremity injuries or residuals were noted. In October 1984, the Veteran was treated for numbness of the left hand, which was ultimately diagnosed as median nerve neuropathy, possibly secondary to pronator teres syndrome. The Veteran was involved in another automobile accident in May 1985 with residuals of head injuries. Upon separation from service, the Veteran specified a history of disabilities including vision problems, right knee injury, head injury, left rib injury, sleep trouble, nervous problems and persistent unconsciousness, however no complaints related to the right upper extremity was noted at this time. In the July 1985 separation examination, no abnormalities of the upper extremities were found upon clinical evaluation. Private and VA medical records from May 1986 to February 2010 reflect that the Veteran complained to a VA treatment provider in December 1998 of pain in the left wrist from heavy lifting at work. Private medical records also demonstrate that the Veteran sustained injuries from a May 2000 motor vehicle accident, including a fracture to the right shoulder. The Veteran reported having mild discomfort in the right shoulder in a March 2001 VA outpatient treatment report. In a December 2001 VA outpatient treatment report, the Veteran complained of multiple joint pains including having a fracture of the right humerus from being hit by a car the previous year. At that time, a neurological evaluation revealed no focal neurological deficits. July 2002 and December 2004 VA outpatient treatment reports included neurological evaluations which noted no focal tremors, atrophy or neurological deficits. In an October 2005 VA outpatient treatment report, the Veteran initially reported having cramping in his hands since 1987, which was worse in the right hand. At that time, he brought a copy of his military medical records and requested a medical statement for disability purposes related to the cramping in the right hand. A neurological evaluation revealed no focal tremors or neurological deficits. In a July 2007 VA outpatient treatment report, the Veteran continued to complain of cramping in the hands, which he related to military service when he was "pulling cable" for several hours and his hands "locked up" and he related having right hand symptoms this incident. A neurological evaluation revealed no focal tremors or neurological deficits. Subsequent VA outpatient treatment reports from March 2008 and December 2008 also included neurological evaluations which revealed no focal tremors, atrophy or neurological deficits. In June 2009, the Veteran complained of a cramping in his hands, which he reported he had many years ago during the military while "pulling cable" and reported intermittent recurrences over the years. The Veteran also reported a history of carpal tunnel syndrome. A neurological evaluation revealed no focal tremors, atrophy or neurological deficits. An evaluation of the extremities reflected the radial pulses were intact and he had no hand nodules but slight clubbing. The Veteran was diagnosed with cramps in the hands. During the October 2012 video conference hearing, the Veteran reported that he had symptoms of pain, numbness, and tingling in the arm whenever he worked with his hands and these symptoms are the same as those he experienced when he was treated in service for cramping in the hands. The Veteran also reported his primary care physician at VA related his right arm problems to service and that the Veteran had "messed up the nerves in his wrists." The duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. In claims for disability compensation, it requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that a veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4) (2012). The U.S. Court of Appeals for Veterans Claims (Court) has held the types of evidence that "indicate" that a current disability "may be associated" with military service include credible evidence of continuity and symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board notes that where a veteran's service-connected disability causes an increase in a nonservice-connected disability, the veteran is entitled to service connection for that incremental increase in severity attributable to the service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Based on the evidence noted above, the Board observes that an adequate VA examination and etiology opinion is required to facilitate appellate review in order to determine whether it is at least as likely as not (50 percent or greater probability) that a neurological disability of the right upper extremity is related to his active service or was otherwise caused or aggravated by his service-connected left upper extremity. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1276 (2010); Allen v. Brown, 7 Vet. App. 439; Barr v. Nicholson, 21 Vet. App. at 311. The nature of the claimed disorder is such that a medical opinion based on a review of the claims folder and examination of the Veteran would be of great value in evaluating the claim. As the record reflects the Veteran had received continuing treatment at VA and the last VA medical records associated with the file are from February 2010, ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Veteran should also be sent a VCAA letter addressing secondary service connection. Accordingly, the case is REMANDED for the following action: 1. Sent the Veteran a VCAA letter addressing the issue of service connection for a neurological disability of the right upper extremity, to include as secondary to service-connected left median neuropathy. See 38 C.F.R. § 3.310. 2. Obtain and associate with the claims file the Veteran's complete VA treatment records, dated since February 2010. 3. Thereafter, schedule the Veteran for a VA neurology examination of his right upper extremity. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file, to include the Veteran's service records. The examiner is asked to answer the following: (a). Does the Veteran have a current neurological disability of the right upper extremity? If so, please specify the diagnosis. (b). If the examiner finds that the Veteran has a current neurological disability of the right upper extremity, s/he is then asked, to furnish an opinion with respect to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed neurological disability of the right upper extremity had its clinical onset during active service from June 1979 to September 1985 or is related to any in-service disease, event, or injury, to include the nature of the Veteran's duties requiring that he work with his hands, the April 1981 cramping of the hands, the September 1982 automobile accident, the October 1984 treatment for the left upper extremity, or the May 1985 automobile accident. (c). If the examiner finds that the Veteran has a current neurological disability of the right upper extremity, s/he is then asked, to furnish an opinion with respect to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed neurological disability of the right upper extremity was (i) caused by or (ii) aggravated by his service-connected neurological disability of the left upper extremity. Please include a discussion of the reasons for all opinions provided. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 4. Next, review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 5. Finally, readjudicate the merits of the Veteran's claim based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. 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). _________________________________________________ P.M. DILORENZO 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).