Citation Nr: 1316247 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 09-16 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for cervical radiculopathy of the right upper extremity, to include as secondary to service-connected cervical spondylosis. 2. Entitlement to service connection for a heart disorder, to include as secondary to service-connected disabilities and medications taken for such disabilities. 3. Entitlement to service connection for radiculopathy of the left lower extremity, to include as secondary to service-connected lumbosacral disc disease. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from August 1983 to October 1983, February 1987 to February 1990, and July 2004 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Board observes that, on his April 2009 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge sitting at the RO. However, in a November 2009 communication, he indicated that he wished to withdraw his hearing request and have his case forwarded to the Board for disposition. 38 C.F.R. § 20.704(e) (2012). The Board further rotes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals additional relevant VA treatment records that have not been considered by the agency of original jurisdiction (AOJ). Likewise, the Veteran's representative submitted internet articles in April 2013 that have not been considered by the AOJ. However, as his claims are being remanded, the AOJ will have an opportunity to review all the newly associated documents such that no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. The issues of whether new and material evidence has been received to reopen claims for service connection for carpal tunnel syndrome, hypertension, and headaches (service connection was denied for these disorders in a January 2009 rating decision to which an appeal was not filed) and service connection for gastroesophageal reflux disease (GERD) were raised by the Veteran's representative in his April 2013 presentation to the Board but have not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). With respect to the claims for service connection for cervical radiculopathy of the right upper extremity and radiculopathy of the left lower extremity, the denial of the claim regarding the right upper extremity was based, at least in part, on the fact that the Veteran complained about left, but not right, upper extremity radiculopathy at a September 2007 VA peripheral nerves examination. See February 2008 rating decision. The denial of the claim for service connection for radiculopathy of the left lower extremity was based on the lack of any "complaints or clinical findings of radiculopathy involving the left lower extremity" at May 2007 and September 2007 VA peripheral nerves examinations. Id. However, clinical records contained in the Virtual VA file (VA's electronic data storage system), but not physically of record, reflect pertinent complaints and findings involving the right upper extremity, to include a November 2012 VA clinical report demonstrating decreased sensation in the right upper extremity as well as pain, paresthesias and/or dysesthesias, and severe numbness therein. The Virtual File also includes November 2011 clinical reports reflecting pertinent findings involving the left lower extremity, to include decreased sensation and numbness with severe pain, paresthesias and/or dysesthesias, and moderate radiculopathy therein. Similar findings in the left lower extremity were shown on November 2012 clinical reports contained in the Virtual VA file. Given the above findings in the Virtual VA file reflecting pertinent right upper and left lower extremity findings that were not of record at the time of initial denial of the Veteran's claims, the Board concludes that a VA examination that includes an opinion as to whether any such right upper and left lower extremity disorders shown in the more recent VA clinical reports is etiologically related to the Veteran's service-connected cervical and lumbar spine disabilities, respectively, is necessary in this case in order to comply with the duty to assist. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). As relevant to all of the Veteran's claims, the Board also notes that, as the above-referenced records in the Virtual VA file, as well as additional records contained therein dated through April 2013, and the internet articles submitted by the Veteran's representative have not been considered by the AOJ, this remand will also afford the AOJ the opportunity to conduct the initial consideration of the VA clinical reports contained in the Virtual VA file in a supplemental statement of the case. See 38 C.F.R. § 19.31; Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Additionally, while on remand, the AOJ should contact the Veteran and request that he identify any VA or non-VA treatment providers who have treated him for his radiculopathy of the left upper and right lower extremities, and a heart disorder. Thereafter, the AOJ should attempt to obtain any identified treatment records, to include VA treatment records from the Batavia, New York, VA Medical Center dated from January 2009 to September 2010 and from April 2013 to the present. With respect to the claim for service connection for a heart disorder, in his April 2013 presentation, the Veteran has contended that such is related to his service-connected disabilities or the medications taken for such disabilities (to include, as provided in medical literature supplied by the Veteran's representative, Non-steroidal Anti-Inflammatories, Flexeril, and Methocarbamol). However, the Veteran does not have a currently diagnosed heart disorder. Rather, the record reflects treatment, to include medication, only for hypertension and dyslipidemia, (see eg. October 2008 VA outpatient treatment reports), and a prior medical history of heart disease in the past (see eg. December 2012 VA treatment record). However, such alleged heart disease is not borne out by the current record. Therefore, after obtaining any outstanding treatment records, the AOJ should review the full record and conduct any additionally indicated development, to include affording the Veteran a VA examination, deemed necessary to decide his claim. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who treated him for radiculopathy of the right upper and left lower extremities or heart disorder. After securing any necessary authorization from him, obtain all identified treatment records, to include VA treatment records from the Batavia VA Medical Center dated from January 2009 to September 2010 and from April 2013 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, the AOJ should issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any outstanding records, the AOJ is to arrange for a VA examination to assess the nature and etiology of any current radiculopathy of the right upper or left lower extremity. The claims file should be forwarded for review by the examiner, and based on review of the evidence contained therein and as summarized above and physical examination of the Veteran, the examiner should specifically offer a response to the following: a) The examiner should specifically indicate whether the Veteran current has radiculopathy of the right upper and left lower extremities. b) Is any current radiculopathy of the right upper or left lower extremity at least as likely as not (a 50% or higher degree of probability) causally related to the Veteran's military service? c) Is any current radiculopathy of the right upper extremity at least as likely as not (a 50% or higher degree of probability) caused or aggravated (worsened beyond natural progression) by cervical spondylosis? If aggravation is found, the examiner should attempt to quantify the extent of aggravation, if possible. d) Is any current radiculopathy of the left lower extremity at least as likely as not (a 50% or higher degree of probability) caused or aggravated (worsened beyond natural progression) by lumbosacral disc disease? If aggravation is found, the examiner should attempt to quantify the extent of aggravation, if possible. The opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner must state in the examination report that the claims file has been reviewed. 3. Relevant to the Veteran's claim for service connection for a heart disorder, after obtaining any outstanding treatment records, the AOJ should review the full record and conduct any additionally indicated development, to include affording the Veteran a VA examination, deemed necessary to decide his claim. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence, to include all evidence associated with the claims file since the issuance of the March 2009 statement of the case and supplemental statement of the case. To the extent any claim remains denied, the Veteran and his representative should be issued supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the U.S. 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). _________________________________________________ A. JAEGER 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).