Citation Nr: 1315388 Decision Date: 05/09/13 Archive Date: 05/15/13 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 service-connected left median neuropathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate 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). The Veteran testified at a hearing at the RO before a Veterans Law Judge in June 2008. This Veterans Law Judge has since retired and the Veteran was offered an opportunity for a new hearing, which was held in October 2012. These transcripts have been associated with the claims file. This case was previously brought before the Board most recently in February 2013 at which time the claim was remanded to the Agency of Original Jurisdiction (AOJ) to further assist the Veteran with the development of his appeal. The case is once again before the Board. 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 Board previously remanded this claim in February 2013, with instructions to schedule the Veteran for a VA compensation examination to determine the etiology of his neurological disability of the right upper extremity. The examination was scheduled for March 6, 2013 at 9 am. The Veteran did not attend the scheduled VA examination. However, in a March 2013 statement the Veteran requested that his examination be rescheduled, preferably for the afternoon as the morning appointment was difficult to make due to his sleep disorder. In light of the statement received in March 2013, the Board finds that the Veteran should be rescheduled for a VA examination. He is reminded that the duty to assist him with his claim is not a one-way street. If he wants help in further developing this claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Any recent VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's complete VA treatment records, dated since March 2013. 2. Thereafter, schedule the Veteran for a VA examination, preferably in the afternoon, to determine the etiology of his neurological disorder of the right upper extremity. It is the Veteran's responsibility to report for any examination scheduled, and to cooperate in the development of the case; the consequences of failing to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). The entire claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), including this REMAND, must be reviewed by the examiner in conjunction with the opinion. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should confirm in the examination report that (s)he has reviewed the folder in conjunction with the examination. The examiner is asked to provide the following opinions: 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, an April 1981 cramping of the hands, a September 1982 automobile accident, October 1984 treatment for the left upper extremity, or a 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 his service-connected neurological disability of the left upper extremity 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. 3. Next, ensure the opinion is responsive to this determinative issue of causation or provides sufficient explanation as to why it cannot be. If it is not, take any needed corrective action. See Stegall v. West, 11 Vet. App. 268 (1998); 38 C.F.R. § 4.2. 4. Finally, readjudicate the Veteran's claim. If this claim is not granted to the Veteran's satisfaction, send him another supplemental statement of the case and give him an opportunity to respond to it by submitting additional evidence and/or argument before returning the file to the Board for further appellate consideration of this remaining claim. 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).