Citation Nr: 1314763 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 06-08 581 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a neurological disability of the left upper extremity, to include reflex sympathetic dystrophy and peripheral neuropathy, claimed as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1971. He was awarded the Vietnam Campaign Medal, among other decorations, for his service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 RO decision. In April 2009, November 2010, and again in August 2012, the Board remanded for further development. Unfortunately, such development has not been completed and another remand is required at this point. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for peripheral neuropathy of the right and left lower extremities as secondary to diabetes mellitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action on his part is required. REMAND Although further delay is regrettable, after a review of the record, the Board observes that further development is still required prior to adjudicating the Veteran's claim. In August 2012, the Board noted that the evidence of record is somewhat scanty regarding the Veteran's left upper extremity neurological problems, as much of the testing and evaluation performed throughout the years has been focused on his right upper extremity, where he has more significant neurological impairment, causing a flexion deformity which results in near loss of use of his right arm. He has contended, however, that he has peripheral neuropathy affecting his left arm, and he asserts the left arm peripheral neuropathy is secondary to his service-connected diabetes. As the Board observed in August 2012, during a June 1989 VA hospitalization, the Veteran complained of numbness along with a pins and needles sensation in both hands, with painful cramping in the fingers of both hands. He reported the onset of these symptoms occurred following a workplace back injury in May 1987. According to the 1989 VA hospital summary, EMG and NCV studies performed at the time of the 1987 back injury were interpreted as showing a diffuse sensory motor neuropathy. Neurological testing revealed bilateral ulnar neuropathy, with flexion of the third, fourth, and fifth fingers of both hands, and beginning flexion of the second fingers in both hands. Motor power and muscle tone were normal in both upper extremities. Left upper extremity strength was noted to be 4/5. There was a glove distribution of impairment of touch and pinprick bilaterally below both wrists, more pronounced in both ulnar distributions. Deep tendon reflexes were markedly depressed and equal in both upper extremities. X-rays of both hands and wrists were normal. The author of the hospital summary report provided the following discussion: Diagnosis all along was far from clear. Although the physical and neurological examinations revealed a diffuse peripheral neuropathy, the increased reflexes in the lower extremities, particularly the left lower extremity without pathological reflexes were suggestive of an upper motor neuron component. Electrical studies done on the outside confirmed the clinical picture of a sensorimotor polyneuropathy. Repeat electrical studies were done at this hospital, but as yet, reports are not available. There is no history of exposure to toxins or other agents other than for Agent Orange. It is of interest that the peripheral neuropathy became manifest after a back injury. Multiple sclerosis appeared unlikely because of the predominantly lower motor neuron picture, and relentless, downhill course. . . . During his stay, patient was seen by the rheumatology service, who did not believe that he had an underlying collagen disease. The report of an August 1992 VA examination reflects the Veteran's complaints of "burning" in both hands. Upon examination, it was noted that the Veteran moved his left entire upper extremity extremely normally. The examiner did not render a diagnosis involving the Veteran's left arm, instead advising a neurological consultation. It does not appear, however, that such a consultation was ever carried out. The Veteran filed a claim for service connection for diabetes in 2001 and the earliest medical evidence of diabetes is also dated in 2001. Although the initial diagnosis of diabetes is not available for review by adjudicators, it would appear that the Veteran's left arm complaints preceded the diabetes by some number of years. During a December 2004 VA examination, no diagnosis involving the Veteran's left arm was rendered. According to the report of a June 2009 VA examination, the Veteran manifested weakness in the biceps brachialis and the triceps, resulting in weakened flexion of his left elbow. The nerves involved were specifically identified as emanating from the cervical spine region. Also noted was decreased sensation to light touch in the left arm. Deep tendon reflexes in the left arm were measured as 1+, indicating low normal, or diminished reflexes. No electromyography testing or nerve conduction studies were performed. The examiner declined to render a diagnosis as to the Veteran's left arm, and also declined to speculate upon the etiology of his symptoms of burning and tingling in the left arm, on the basis that the Veteran had multiple pathologies which could account for his symptoms and because the neurological work-up in 1989 had revealed no firm conclusion as to the etiology of his complaints. In November 2010, the Board ordered that the Veteran's claims file be returned to the same examiner for further elaboration; however, in the written request, the Appeals Management Center mistakenly identified the extremity at issue as the upper right extremity, rather than the upper left extremity. Thus, the resulting explanation pertains to the wrong arm, and is not helpful whatsoever in resolving the Veteran's appeal as to his left arm. In August 2012, the Board noted that VA treatment records from 2001 to 2012 reflect several descriptions of his complaints including, diabetic neuropathy, chronic pain syndrome, reflex sympathetic dystrophy, or regional pain syndrome, for which he takes several different prescription pain medications. A June 2003 neurological consultation reveals a history of neuropathy of unknown etiology since the 1970s, complicated recently by diabetes and heart failure. The Board determined in August 2012 that it was not clear what the Veteran's left arm neurological diagnosis is, or what the etiology(ies) is/are. The Board also found that it was clear that the medical evidence of record was incomplete. The Board stated that it appeared that there were outstanding VA treatment records. The Board observed that any VA medical records are deemed to be constructively of record in proceedings before the Board and should be obtained prior to further review of the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board observed the following: 1) The 1989 electrical studies referred to in the hospital summary quoted above had not been obtained for review. 2) A computer print-out reflects that the Veteran had multiple neurology appointments in 1990 and 1991 at the Brooklyn VA Medical Center; however, it did not appear that the records reflecting these appointments had ever been requested. Furthermore, it did not appear that any VA medical records dated between 1990 and 1996 had ever been requested for review by adjudicators. 3) In 1997, the RO requested the Veteran's medical records for the years 1996 and 1997 from the Brooklyn VA Medical Center; however, a memorandum in the file reflects that hospital personnel were unable to locate the Veteran's records, and no further action was taken. Since that time, regulatory standards for obtaining records in the custody of a Federal Department have become more stringent; therefore the Board deemed that further efforts to find these records should be undertaken. 4) No records reflecting the Veteran's VA medical care from 1998 to 2000 in the Brooklyn area had been requested for review. 5) The Veteran's VA outpatient treatment records reflecting care provided in Florida from 2001 through 2011 are available for review in his Virtual VA file. As these records were added to his file in relation to a claim for service connection for heart disease, it was not clear that all special neurological consultations were available for review. Thus, in August 2012, the Board directed that the RO should obtain all neurological test reports generated during the Veteran's hospitalization at the Brooklyn VA Medical Center in June and July 1989 for inclusion in the claims file. Further, all outpatient treatment reports from the Brooklyn VA Medical Center from 1990 through 1996 were to be obtained for inclusion in the claims file. Further requests for the outpatient treatment reports from the Brooklyn VA Medical Center from 1996 and 1997 were to be made. Additionally, all outpatient treatment reports from the Brooklyn VA Medical Center from 1998 through 2000 were to be obtained for inclusion in the claims file. All archived records were to be retrieved from storage as necessary. The Board instructed that the appropriate memoranda were to be prepared for the file in the event that any of these VA medical records could not be located. Moreover, the Board directed that the RO was to obtain any special neurological reports generated by the Naples Outpatient Clinic, the Fort Myers Outpatient Clinic, and the Collier County Outpatient Clinic, and/or any related VA facilities dated from 2000 through the present, for inclusion in the claims file. Additionally, his records from the Naples Outpatient Clinic, the Fort Myers Outpatient Clinic, and the Collier County Outpatient Clinic were to be updated for the file from 2012 through the present time. Lastly, after obtaining as many outstanding medical records as possible, to reflect the condition of the Veteran's left arm over the years, the Board directed that the Veteran was to be provided with a VA examination for the purpose of specifically identifying the current diagnosis/es involving the Veteran's left arm, and the etiologies of all diagnoses identified. A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination was to be included in the claims folder, and must reflect that it was sent to his last known address of record. If the Veteran failed to report to the examination, it was to be indicated in the claims folder whether the notification letter was returned as undeliverable. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Appeals for Veterans Claims ("Court"). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Initially, the Board notes that in August 2012, the RO/AMC requested the Brooklyn VA Medical Center to provide all neurological test results during the Veteran's hospitalization from June and July 1989 and all outpatient treatment records from January 1990 to December 2000. A November 2012 Report of General Information reflects that staff at the Brooklyn VA Medical Center had indicated that a negative response to the inquiry had been mailed that month. In December 2012, the AMC received a response from the Brooklyn VA Medical Center indicated that there were no records found for the Veteran. While a memorandum was prepared for the file with the subject "Formal Finding on the Unavailability of Brooklyn VAMC treatment records from 1989 to 2000," the Board notes that the body of such memorandum appears to address attempts to obtain employment documents, rather than treatment records from the Brooklyn VA Medical Center. Additionally, the Board observes that in August 2012 the AMC requested from the Bay Pines VA Medical Center all VA treatment records of the Veteran from 2000 to the present, and any special neurological reports from the Naples Outpatient Clinic, the Fort Myers Outpatient Clinic, and the Collier County Outpatient Clinic from 2000 to the present. In September 2012, the Board received a response from the Bay Pines VA Medical Center, which included an electronic medical records disc which had been created in August 2012. However, copies of the medical records on such disc were not retrieved and associated with the paper claims file or Virtual VA. As the disc is password protected, the Board is unable to open the file on the disc to review the medical records contained therein. Finally, documents in the claims file indicate that the Veteran failed to report for a VA peripheral nerves examination scheduled in December 2012. However, the RO/AMC failed to include a copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination in the claims folder, and there is no indication in the claims folder as to whether the notification letter was returned as undeliverable. Thus, on remand, the Veteran should be provided with another opportunity to report for a VA examination for the purpose of specifically identifying the current diagnosis/es involving his left arm. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all neurological test reports generated during the Veteran's hospitalization at the Brooklyn VA Medical Center in June and July 1989 for inclusion in the claims file. All outpatient treatment reports from the Brooklyn VA Medical Center from 1990 through 1996 should be obtained for inclusion in the claims file. Further requests for the outpatient treatment reports from the Brooklyn VA Medical Center from 1996 and 1997 should be made. All outpatient treatment reports from the Brooklyn VA Medical Center from 1998 through 2000 should be obtained for inclusion in the claims file. All archived records should be retrieved from storage as necessary. The appropriate memoranda should be prepared for the file in the event that any of these VA medical records cannot be located. 2. The RO should retrieve and associate with the paper claims file or Virtual VA, copies of all VA treatment records and/or reports contained on the electronic medical records disc created in August 2012, and received by the AMC from the Bay Pines VA Medical Center in September 2012. 3. The Veteran should be afforded a VA neurological and/or endocrinological examination to identify all neurological pathology currently involving the Veteran's LEFT arm. The claims folder and any pertinent evidence in Virtual VA not contained in the claims folder, including all records obtained pursuant to the above requests, must be made available to the examiner for review in conjunction with the examination. In this regard, it is noted that in previous examinations and clinical settings, the Veteran has not been a completely accurate historian, therefore, the examiner is requested to review his medical history with care. All tests and studies deemed helpful by the examiner should be conducted in conjunction with the examination. The examiner is specifically requested to: (a) Identify the approximate date of onset for polyneuropathy (or other diagnosis rendered) of the LEFT upper extremity (b) Opine whether it is at least as likely as not (probability of fifty percent or more) that polyneuropathy of the LEFT upper extremity was caused or aggravated by the Veteran's service-connected diabetes mellitus. The examiner should note that aggravation is defined for legal purposes as a permanent worsening of the underlying condition versus a temporary flare-up of symptoms. A complete rationale must be provided for any opinion rendered. The examiner should not invoke the phrase "without resort to mere speculation" without first explaining the basis for such an opinion. 4. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder, and must reflect that it was sent to his last known address of record. If the Veteran fails to report to the examination, it must be indicated in the claims folder whether the notification letter was returned as undeliverable. 5. After the development requested above has been completed to the extent possible, the RO should again review the record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. 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). _________________________________________________ L. M. BARNARD Acting 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).