Citation Nr: 1313650 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 10-48 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a disability manifested by numbness of the hands. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Barone, Jacqueline INTRODUCTION The Veteran had active service from May 1968 to May 1972, and from November 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Board observes that the Veteran submitted a claim for a rating in excess of 10 percent for undiagnosed illness manifested by joint pain in January 2010. In a May 2010 rating decision, the RO denied service connection for cervical spine stenosis with foraminal stenosis and bilateral hand numbness, and proposed to sever service connection for undiagnosed illness manifested by joint pain. The proposed severance was carried out in an August 2010 rating decision, but a decision review officer decision in July 2011 restored service connection with a 10 percent evaluation on the basis that it was a protected rating. However, in both his notice of disagreement and substantive appeal, the Veteran asserted that the evaluation assigned to joint pain should be higher than 10 percent. The RO has not directly addressed the evaluation of this disability; thus the issue of entitlement to an evaluation in excess of 10 percent for undiagnosed illness manifested by joint pain is referred for appropriate action. The Board further notes that in May 2001 the Veteran perfected an appeal with respect to the evaluation of his bilateral hearing loss disability. However, prior to certification of that appeal to the Board, the Veteran withdrew the appeal in a December 2001 statement. The Board notes that a Virtual VA e-file exists for this Veteran. This e-file was reviewed for new or relevant information; however, a review of the e-file revealed that it contained entirely duplicative information, such as past rating decisions and correspondence, as well as VA examination reports, that is already in the claims file. 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 The Veteran maintains that he has a cervical spine disability that is related to his service, and numbness of the hands that is related to the cervical spine disability. He has stated that he has had pain in his neck and numbness in his arms and hands since service, and that it has worsened. His wife, whom he has known for approximately 37 years, has indicated that the Veteran has complained of neck and arm pain since he returned from Desert Storm in 1991. She has described his current symptoms, to include neck complaints and difficulty with manual dexterity. Medical records associated with the claims file include an April 2010 VA examination report indicating cervical stenosis and foraminal stenosis. The examiner commented that the arthritis was related to aging and not a nondiagnosed illness. He did not provide an opinion regarding whether the cervical spine disability was related to service. The RO used this statement as a basis for denial of the Veteran's claim. The Board notes, however, that the conclusory statement did not address the possibility of a relationship to service, and offered no rationale. The Board therefore concludes that the examination report is incomplete and inadequate for the purpose of deciding this claim. In this regard, the Board notes that once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the examination was inadequate because the examiner did not provide a reasoned opinion with respect to whether the Veteran's claimed cervical spine disability is related to service, or whether any currently present upper extremity disability is related to either service or a service-connected disability. In light of the above discussion, the Board finds that additional development is necessary. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any additional medical records, both VA and non-VA, not already associated with the claims file or e-file, that are relevant to his claim. Request that the Veteran complete and return any necessary authorization forms. If, after making reasonable efforts to obtain named non-VA records the AMC is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Schedule the Veteran for a VA examination to determine the etiology of his cervical spine disability and any currently present neurologic disability of the upper extremities. The claims folder should be forwarded to the examiner for review. The examiner should be directed to elicit a complete history from the Veteran. All indicated studies should be performed, and their results reported. Following review of the claims file and examination of the Veteran, the examiner should identify all currently present cervical spine disabilities and neurologic disabilities of the upper extremities. The examiner should then provide an opinion regarding whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the current cervical spine disability began in service or is related to any disease or injury in service. The examiner should also provide an opinion regarding whether is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any current neurologic disability of the upper extremities, including the carpal tunnel syndrome which was diagnosed by VA in June 2009, is related to active military service, including duties as a mechanic therein. Also, was any current neurologic disability, including carpal tunnel syndrome, caused by the cervical spine disability or aggravated (i.e., worsened) beyond the natural progress by the cervical spine disability. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's neurologic disability found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the cervical spine disability. The complete rationale for all opinions expressed should be set forth in the examination report. 3. Then, after ensuring the examination reports are adequate and undertaking any additional development that is deemed warranted, readjudicate the claims on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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). _________________________________________________ S. S. TOTH 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).