Citation Nr: 1311534 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-36 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for carpal tunnel syndrome, claimed as secondary to service-connected cervical spondylosis. 2. Entitlement to service connection for cervical radiculopathy, claimed as secondary to service-connected cervical spondylosis. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had service from May 1957 to January 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2012, the Veteran withdrew his previous request for a hearing before a Decision Review Officer at the RO. In January 2013, the Veteran testified before the undersigned via videoconference technology. A transcript of the hearing is associated with the Virtual claims file. In addition to the physical claims file, there is a Virtual VA file associated with the Veteran's appeal. All of the evidence contained in the Virtual file is duplicative of evidence already in the physical file or irrelevant to the issue decided herein. In a June 2012 written statement, the Veteran withdrew his claims of entitlement to service connection for a left foot disability, a bilateral hip disability, a left hand disability, and a left shoulder disability. He specifically stated that he wished only to pursue to the issue of entitlement to service connection for a right hand disability. Therefore, those issues are no longer on appeal, and the Board need not address them herein. In a March 2013 written statement, the Veteran's representative informed the Board that he would be submitting an additional opinion regarding cervical radiculopathy following an appointment he had with his private physician that month. While this evidence has not been received, this issue is being granted in full herein, and the remaining issue is being remanded to the RO. Therefore, the Board will go forward with this decision, as the absence of this evidence is harmless error. The issue of entitlement to service connection for carpal tunnel syndrome, claimed as secondary to service-connected cervical spondylosis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Cervical radiculopathy is causally related to service-connected cervical spondylosis. CONCLUSION OF LAW Cervical radiculopathy is proximately due to or the result of service-connected cervical spondylosis. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist claimants in the development of their claims. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Given that this is a full grant of the appeal that is decided herein, no discussion of the VCAA is necessary, as any deficiencies in the duties to notify and assist are harmless error. II. Analysis In a June 2012 written statement and during the January 2013 hearing, the Veteran clarified that he was not seeking service connection for any disability other than carpal tunnel syndrome of the right hand. He specifically noted that, while he had previously been afforded a VA examination regarding arthritis, he was no longer seeking service connection for this disability. The undersigned then expanded this claim during the Board hearing to include entitlement to service connection for any neurological disorder of the right upper extremity, which includes cervical radiculopathy. The Veteran clarified in these written and oral statements that this was his only claim. Therefore, while there is medical evidence dated during the appeal period that shows that the Veteran had inflammatory arthritis of multiple joints, including his hands, the Veteran has specifically stated that he is not pursuing this issue on appeal, and the Board will not address it. Furthermore, the Veteran clarified during his January 2013 Board hearing that he was only seeking service connection for a right upper extremity neurological disorder as secondary to his already service-connected cervical spondylosis and was not alleging that this disability began in or is directly related to his period of service. Therefore, the Board will confine this discussion to the issue sought by the Veteran. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 38 C.F.R. § 3.303(a) clarifies that service connection is warranted in situations where a disease resulting in disability was incurred "coincident with" service. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). The Veteran has been granted entitlement to service connection for cervical spondylosis. In December 2009, the Veteran underwent VA examination for his spine and shoulder. Right shoulder strain and cervical spondylosis were diagnosed. While a diagnosis of arthritis of the hands was given, no examination of the hands was conducted. Nevertheless, the examiner opined that it was not related to events that occurred during service. The Veteran had developed a post-separation inflammatory arthritis which was not present in service. A May 2012 report of a private nerve conduction study shows that the interpretation was that the ulnar nerve studies were within normal limits. The median nerve studies revealed moderately prolonged distal latency at the wrist and slow sensory conduction velocity. Findings were indicative of moderate carpal tunnel syndrome in the right hand. In addition, an EMG study was performed of the right upper extremity and paracervical muscles, which was suggestive of mild cervical radiculopathy at the mid to lower cervical level. In a June 2012 document, the Veteran's private physician indicated that the current disability was right carpal tunnel syndrome, which was most likely caused or the result of a prior injury in 1978. The nerve studies dated in May 2012 revealed moderate carpal tunnel syndrome and cervical radiculopathy of the right upper extremities. Based on a review of this evidence, the Board finds that service connection for cervical radiculopathy, as secondary to service-connected cervical spondylosis, is warranted. While the opinion provided by the Veteran's private physician does not contain a rationale for the conclusion reached with regard to cervical radiculopathy, the Board finds that this disability, by its very diagnosis, indicates that it is related to the cervical spine. Therefore, even though the opinion contains no rationale from the Veteran's physician, the Board concludes that service connection is warranted for cervical radiculopathy, as secondary to service-connected cervical spondylosis. ORDER Service connection for cervical radiculopathy is granted. REMAND The Board finds that further development is necessary prior to final adjudication of the Veteran's claim of entitlement to service connection for carpal tunnel syndrome, claimed as secondary to cervical spondylosis. The opinion provided by the Veteran's physician in June 2012 is inadequate because the physician did not provide a rationale for his conclusion that carpal tunnel syndrome is secondary to cervical spondylosis. Unlike cervical radiculopathy, which was awarded service connection above, this diagnosis by its definition does not indicate that there is a relationship to the cervical spine disability. In such cases, VA must attempt to obtain an adequate opinion to serve as the basis for a decision. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As the Veteran is also service connected for a right shoulder disability, VA should also obtain an opinion regarding secondary service connection pursuant to this disability. Accordingly, the case is REMANDED for the following action: Obtain an opinion that addresses whether it is likely, as likely as not, or not likely that carpal tunnel syndrome is (a) secondary to cervical spondylosis and/or the right shoulder disability, or (b) aggravated by cervical spondylosis and/or the right shoulder disability. A complete rationale for all opinions must be provided. 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs