Citation Nr: 1316544 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 09-01 695 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for bilateral carpal tunnel syndrome. 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to a rating in excess of 10 percent for right shoulder strain. 4. Entitlement to a rating in excess of 10 percent for left shoulder strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1970 to June 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claim. See 38 C.F.R. § 3.159. The Veteran contends that his carpal tunnel syndrome was caused by his duties during his 23 years of military service. The record shows that postservice (prior to the first diagnosis of carpal tunnel in the record) he was apparently evaluated regarding such disability on behalf of an employer and received treatment including wrist supports. Records of such treatment are likely to contain pertinent information, and must be secured. The record also shows that there are other outstanding private treatment records. Specifically, in 2010 the Veteran underwent surgery for the carpal tunnel syndrome. The records of the surgery (and evaluations leading up to the surgery) are also likely to contain pertinent information, and also must be secured. The Veteran also alleges that he developed diabetes in, or as a result of, his service. He served in the Vietnam era (including in the Far East). His records pertaining to duty assignments (including a DD-214 for service prior to 1986) are not complete/all inclusive, and based on the current record, it cannot be excluded that he served in Vietnam (which would entitle him to consideration of his diabetes claim under the presumptive provisions in 38 U.S.C.A. § 1116). Additionally, the Veteran's service treatment records (STRs) show elevated glucose readings on several occasions, including on March 1993 service separation examination. He has not been afforded a VA examination to determine whether there is a nexus between his current diagnosis of diabetes and his service (and specifically, the elevated glucose readings therein). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the U.S. Court of Appeals for Veterans Claims (Court) explained its interpretation of 38 C.F.R. § 3.159(c)(4) regarding the circumstances under which a VA examination to secure a nexus opinion is necessary. Section 3.159(c)(4) provides that an examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the Veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Court held that the requirement that a disability "may be associated" with service is a "low threshold" standard. McLendon, 20 Vet. App. at 83. Here, there is a current diagnosis of diabetes, and an indication that the diabetes might be associated with the Veteran's service. Hence, the "low threshold" standard of McLendon is met and an examination to secure a medical opinion is needed. Regarding the ratings for his right and left shoulder strain, the Board notes that a December 2012 rating decision granted the Veteran service connection for right and left shoulder strain and assigned initial ratings for such disabilities. Correspondence from the Veteran received in January 2013 expresses disagreement with the ratings, and is reasonably interpreted as a (timely) notice of disagreement with the December 2012 rating decision. The RO has not issued a statement of the case (SOC) in the matter. In such circumstances the Board is required to remand the matter for issuance of a SOC. See Manlicon v. West, 12 Vet. App. 238 (1999). This matter is not before the Board at this time, and will only be before the Board if the Veteran timely files a substantive appeal after a SOC is issued. The Veteran is advised that when evidence or information (including identifying information and releases for private records) requested in connection with a claim for VA benefits is not received within a year following the request, the claim is to be considered abandoned. 38 C.F.R. § 3.158(a). Accordingly, the case is REMANDED for the following: 1. The RO should secure for association with the claims file the Veteran's complete service personnel records (or complete copies of such records), to include his DD-214 showing service prior to 1986. It should be definitively established for the record whether or not the Veteran served in Vietnam (or in any location where tactical herbicides were used). 2. The RO should also ask the Veteran to identify all providers of evaluations and/or treatment he has received for carpal tunnel syndrome since service (to specifically include the employer who provided splints and the records of, and leading up to, his carpal tunnel surgery in 2010) , and to provide the authorizations necessary for VA to obtain records of private treatment/employment records. The RO should secure for the record copies of complete clinical records of the evaluations/treatment (i.e., those not already associated with the claims folder) from all providers identified. The Veteran should be notified if any private records identified are not received pursuant to the RO's request, and reminded that ultimately it is his responsibility to ensure that private records are received. If he does not respond within a year to the RO's request for identifying information and/or releases, the claim must be processed under 38 C.F.R. § 3.158(a) (dismissed as abandoned). 3. If it is determined that the Veteran did not serve in Vietnam/was not exposed to tactical herbicides in service, the RO should arrange for a VA endocrinology examination to determine the likely etiology of his diabetes mellitus. The examiner must review the Veteran's claims file in conjunction with the examination. The examiner should specifically note the elevated glucose readings in December 1992, March 1993, and April 1993. Based on a review of the record and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's diabetes mellitus is related to his service. The examiner should explain the rationale for all opinions given. 4. The RO should review their determination regarding the ratings assigned for the Veteran's right and left shoulder strain, and issue an appropriate SOC in the matter of entitlement to ratings in excess of 10 percent for these disabilities. He should be advised of the time limit for perfecting his appeal, and afforded the opportunity to do so. If this occurs, these matters should be returned to the Board for appellate review. 5. The RO should then review the record and readjudicate the Veteran's claims of service connection for carpal tunnel and diabetes. If either remains denied, the RO should issue an appropriate supplemental SOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the 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 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). _________________________________________________ GEORGE R. SENYK 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).