Citation Nr: 1316174 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 08-16 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a neurological disorder of the upper extremities (claimed as tingling and numbness), including as secondary to the service-connected degenerative joint disease and degenerative disc disease of the cervical spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran served on active duty from December 1972 to November 1975. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the St. Louis, Missouri Regional Office (RO) of Department of Veterans Affairs (VA) that denied the Veteran's claim of entitlement to service connection for a neurological disorder of the upper extremities, claimed as secondary to the service-connected cervical spine degenerative joint disease (DJD) and degenerative disc disease (DDD). The Board remanded the case for additional development in November 2011. While the case was in remand status, the Veteran was granted service connection for posttraumatic stress disorder (PTSD) is a rating decision issued in July 2012. As that claim was granted, the PTSD issue is no longer before the Board. The case has now been returned to the Board for appellate review. In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claim. Virtual VA does currently contain evidence pertinent to the claim that is not already included in the paper claims files, namely VA medical treatment records dated between 2007 and 2011. 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's review of the record reveals that further development is required before the issue on appeal is decided. Review of the evidence of record reveals that the Veteran told a VA social worker that she had a Social Security Administration (SSA) disability claim pending in November 2007. An August 2008 VA social work note stated that the Veteran's SSA disability claim had been approved. A subsequent note, dated in July 2009, indicated that the Veteran's income was from SSA. While the RO received some SSA records in October 2007, these records related to an earlier claim and to an appeal about an overpayment. The records associated with the claim approved in 2008 have not been obtained by or requested by VA. Although SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Masors v. Derwinski, 2 Vet. App. 180 (1992). Thus, the originating agency should obtain and associate with the record a copy of SSA's 2008 determination, as well as copies of all medical records underlying that determination. The Board's November 2011 remand directed the RO to schedule the Veteran for a neurological examination. The evidence of record indicates that the Veteran was scheduled for such an examination, but that examination did not take place. There is some indication in the record that the Veteran may have wanted to submit a Disability Benefits Questionnaire (DBQ) form from a private physician or a VA physician instead. However, this form apparently was never submitted. In any case, as the matter is being remanded, the Veteran can be afforded another opportunity to appear for a neurological examination. The Board also observes that the most recent VA outpatient treatment records associated with the Veteran's VA claims file are dated in 2011. Since the Veteran's claim is are being remanded, all outstanding current VA outpatient treatment records must be obtained and associated with the Veteran's VA claims file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); see also 38 U.S.C.A. § 5103A (b),(c). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Assure that all notification and development action required by 38 U.S.C. A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed. 2. Obtain all of the appellant's outstanding VA medical treatment records and associate them with the claims file. Obtain all private records as well, if any. 3. Undertake appropriate development to obtain a copy of the most recent SSA disability determination for the Veteran (2008) and copies of the records upon which the determination was based. 4. To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file must contain documentation of the attempts made. The Veteran and her representative must also be informed of the negative results and be given opportunity to secure the records. 5. After completing any additional notification and/or development action deemed warranted by the record, schedule the Veteran for examination by a neurologist to determine the nature and etiology of any neurological disorders of the upper extremities present during the pendency of the claim. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Any indicated studies should be performed. Electromyography (EMG) and nerve conduction studies (NCS) must be completed. All pertinent X-ray, CT scan, MRI and EMG/NCS results must be discussed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, her post-service medical records, and lay statements and assertions. The examiner must identify all current neurological disorder(s) of each one of the Veteran's upper extremities. The examiner must specifically explain which nerves of the right and left upper extremities are affected, if any. For each disorder identified, the VA examiner must provide an opinion concerning the following: a) Is the disorder a manifestation of the Veteran's nonservice-connected fibromyalgia? b) When did the identified disorder manifest? c) Is the identified disorder at least as likely as not caused by the Veteran's service? d) Is the identified disorder at least as likely as not caused by the Veteran's service-connected degenerative joint disease and degenerative disc disease of the cervical spine? e) Is the identified disorder at least as likely as not aggravated by the Veteran's service-connected degenerative joint disease and degenerative disc disease of the cervical spine? If the examiner concludes there was aggravation, the physician must indicate what portion/percentage of the current upper extremity neurological pathology is due to such aggravation. In assessing the relative likelihood as to origin and etiology of the renal condition specified above, the physician must apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed disorder is causally or etiologically related to some incident of the Veteran's service or to the Veteran's service-connected disabilities, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report. Note: As used above, 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. Note: The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 6. The rationale for all opinions expressed must also be provided. If any requested opinion cannot be provided, the examiner must explain why the opinion cannot be provided. If the examiner concludes that there is insufficient information to provide an etiologic opinion, the examiner must state whether the inability to provide the opinion is due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's current claimed upper extremity pathology. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 7. Upon receipt of the VA examiner's report, conduct a review to verify that all requested opinions have been offered. If information is deemed lacking, refer the report to the examiner for corrections or additions. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.). 8. After all appropriate development has been accomplished, review the record, including any newly acquired evidence, and readjudicate the issue of service connection for a neurological disorder of the upper extremities. The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, including Allen v. Brown, 7 Vet. App. 439 (1995). Ensure that direct, presumptive, secondary and aggravation theories of service connection are considered. 9. If the benefit sought on appeal remains denied, the Veteran and her representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. Appropriate time must be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is hereby notified that it is her responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. 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 Veteran need take no action unless otherwise notified. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).