Citation Nr: 1313031 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 09-46 760 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a neurological disability of the upper and lower extremities. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1987 to December 2006. She had three months of active duty service prior thereto. This matter comes to the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Service connection for numbness and tingling of the upper extremities and for numbness and tingling of the lower extremities was denied therein. The previously established 10 percent evaluation for cervical spine degenerative disc disease (DDD) with chronic strain was continued. Each of these determinations was appealed by the Veteran. Subsequently, jurisdiction was transferred to the RO in Chicago, Illinois. The Veteran testified regarding this matter before the undersigned Veterans Law Judge at a Travel Board hearing in April 2012. The Board denied a higher evaluation for cervical spine DDD with chronic strain in October 2012. As such, this issue no longer is on appeal. The issues of service connection for numbness and tingling in the upper extremities and in the lower extremities were consolidated into one issue and recharacterized as a neurological disability of the upper and lower extremities. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). This issue was remanded for additional development. Based on review of the Veteran's claims file and her Virtual VA "eFolder," this matter once again is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. The Veteran filed a claim with several service connection issues and higher evaluation issues in December 2012. None have been adjudicated by the Agency of Original Jurisdiction (AOJ), which is the RO here, yet. The Board therefore does not have jurisdiction over them. They accordingly are referred to the AOJ for appropriate action. REMAND Although the Board sincerely regrets the further delay of a second remand, adjudication of this matter cannot proceed. Further additional development is needed. Such development is necessary to ensure that the Veteran is afforded every possible consideration. VA has a duty to assist the Veteran in substantiating her claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). When VA provides a medical examination or medical opinion for a service connection issue, whether or not there was an obligation to do so, this duty requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination or opinion is adequate when it allows the Board to perform a fully informed evaluation. Id. Consideration must be given to the Veteran's entire medical history. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). The disability present, if any, must be described in sufficient detail. Id. The factual premises underlying a medical opinion must be accurate. Reonal v. Brown, 5 Vet. App. 458 (1993). The rationale for a medical opinion also must be fully and clearly articulated. Stefl, 21 Vet. App. at 120; Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board's October 2012 remand was drafted so as to satisfy the duty to assist. While cervical spine DDD with intermittent upper extremity radiculopathy was diagnosed and it was opined that the neck and radicular symptoms are at least as likely as not military-related upon VA examination in March 2011, it was noted that this was without the benefit of review of the claims file. The April 2011 VA medical opinion, which was based upon such review but not upon an examination, that the Veteran's upper extremity symptoms are less likely as not related to her service-connected cervical spine or lumbar spine disabilities since there is no objective evidence of them was noted to be incomplete because it did not address the lower extremities. That radiculopathy was found in March 2011 but was not found in April 2011 was highlighted, as was the lack of any explanation for this discrepancy. In light of these deficiencies, the Board directed that the Veteran be scheduled for a neurological examination to ascertain the nature of any neurological disorder of her upper and lower extremities complete with a medical opinion regarding its etiology. It was specified that the claims file must be reviewed. In December 2012, the Veteran was afforded a VA peripheral nerves examination. The claims file was reviewed by the examiner. The examiner also interviewed the Veteran. She reported, among other things, a migrating quality to her symptoms. Sections of the examination report pertaining to muscle strength, reflex, sensory, trophic changes, gait, and other special testing were left blank. The examiner opined that the Veteran did not have peripheral neuropathy or any other peripheral nerve condition. In this regard, it was noted that her symptoms are diffuse and do not follow anatomic boundaries as would a peripheral neuropathy, that her symptoms do not follow a nerve root distribution and thus do not suggest radiculopathy, and that her "motor and sensory exams" are normal. The Board finds that there has not full or even substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) ("a remand by . . . the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders"); Dyment v. West, 13 Vet. App. 141 (1999) (another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). A neurological examination of the Veteran was directed, but no such examination was conducted. The December 2012 examiner references "motor and sensory exams" but did not fill in any motor, sensory, or other test findings. Thus, the examiner's reference appears to be to test findings from other examinations or non-examination evaluations. The Board additionally finds that the December 2012 examiner's determination is based partially on an inaccurate factual premise. While normal motor and sensory function is noted by the examiner and has been shown along with normal reflex function on many occasions, to include at VA examinations and in VA and service treatment records, decreased function sometimes has been found. This includes at an October 2008 VA medical examination as well as in VA and service treatment records. Finally, the Board finds that there still is no explanation, let alone a thorough explanation, for the discrepancy between the finding of upper extremity radiculopathy in March 2011 and the lack of such a finding thereafter. It additionally is noted that VA treatment records dated in 2009 document possible diagnoses of neuritis and radiculopathy in the Veteran's lower extremities while a February 2010 VA treatment record contains a diagnosis of radiculopathy her lower extremities. No explanation has been provided for the discrepancy between this finding and the lack of such a finding thereafter. To cure both the Stegall violation as well as the aforementioned deficiencies, another VA medical examination and medical opinion is needed. A remand is required so that arrangements can be made to schedule the Veteran for such. As VA medical examinations and medical opinions must be based on consideration of the Veteran's entire medical history, outstanding records must be associated with the claims file or the "eFolder" before the Veteran here is afforded another VA medical examination complete with opinion. The duty to assist her in substantiating her claim includes helping procure pertinent records. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2012). VA treatment records indeed plausibly could be expected to be among the evidence before the Board, and thus the Board has constructive notice of them. Bell v. Derwinski, 2 Vet. App. 611 (1992). Assistance with respect to such records in Federal custody generally consists of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). Notification to the Veteran of the inability to obtain records shall be made if necessary. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). VA treatment records dated into December 2010 have been obtained. There is no indication that VA treatment records dated from December 2010 to present have been requested. Therefore, requests or requests for them must be made on remand. In the event it is concluded following one or more requests that they do not exist or that further requests for them would be futile, the Veteran shall be notified. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records dated from December 2010 to present. All records obtained shall be associated with the claims file or "eFolder." If records cannot be obtained, follow established procedure for notifying the Veteran. 2. After completion of the above development, arrange for the Veteran to undergo an appropriate VA medical examination regarding any neurological disorder of her upper and/or lower extremities. The claims file shall be made available to and reviewed by the examiner. The examiner then shall obtain from the Veteran a description of her relevant history and her symptoms, to include information about onset, frequency, duration, and severity. Tests, studies, and/or evaluations, to include those concerning motor, sensory, and reflex function as well as any others deemed necessary, next shall be performed. The examiner thereafter shall opine as to whether or not the Veteran has any neurological disorder of her upper and/or lower extremities. For each such disorder diagnosed, the examiner shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that it: (a) was incurred during the Veteran's service, (b) otherwise is related to her service, (c) was caused by her service-connected cervical spine disability and/or lumbar spine disability, or (d) was aggravated (permanently worsened beyond natural progression) by her service-connected cervical spine disability and/or lumbar spine disability. If aggravation is found, the examiner further shall opine as to: (a) the level of disability prior to the aggravation and (b) the current level of disability. This is necessary so that the amount of disability attributable solely to the aggravation may be determined. A clear and complete rationale shall be provided for each opinion rendered. This shall include detailed discussion of pertinent medical principles, with a citation for any literature referenced, as well as of pertinent medical (VA examinations and opinions as well as VA, private, and service treatment records) and lay/non-medical (statements and testimony from the Veteran) evidence. With respect to the opinion concerning the existence of a neurological disorder, the discussion must include an explanation of the discrepancy between upper extremity radiculopathy being found in 2011 and then not found. It also must include an explanation of the discrepancy between lower extremity radiculopathy being found in 2010 but then not found. Continuity of symptomatology and any other medical opinions, to include those from VA in March 2011, April 2011, and December 2012, specifically shall be considered in the discussion for the opinion concerning a connection to service or a service-connected disability or disabilities. If an opinion cannot be provided without resort to mere speculation, it specifically shall be indicated whether this is because more information is needed, the limits of current medical knowledge have been exhausted, or otherwise. Each of the above actions shall be documented fully in an examination report. A copy of such report shall be placed in the claims file or "eFolder." 3. Finally, readjudicate the Veteran's entitlement to service connection for a neurological disability of the upper and lower extremities. If this benefit is not granted, she and any representative appointed by her shall be provided with a supplemental statement of the case (SSOC) and afforded sufficient time to respond. A copy of the SSOC shall be placed in the claims file or "eFolder." The Veteran has the right to submit additional evidence and argument on the issue 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).