Citation Nr: 1317402 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 12-10 814 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to service connection for a neurological disability of the left upper extremity (claimed as peripheral neuropathy), to include as secondary to service-connected left shoulder injury residuals. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1952 to October 1956. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2010 rating decision in which the RO, inter alia, denied service connection for ulnar palsy of the left arm (claimed as peripheral neuropathy of the left upper extremity). In June 2010, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in March 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2012. In his April 2012 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. Thereafter, in a July 2012 letter, he requested that his hearing request be withdrawn. See 38 C.F.R. § 20.704(d) (2012). In October 2012, the Acting Chairman of the Board advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). In December 2012, the Board, inter alia, remanded this claim for further development. As detailed below, the Board finds that additional development is required prior to adjudication. Accordingly, this matter is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant when further action, on his part, is required. REMAND In June 2010, the Veteran was awarded service connection for left shoulder injury residuals, to which he contends his left upper extremity disability is related. While the Veteran has asserted entitlement to service connection only on a secondary basis, the record also raises a question as to whether service connection is warranted on a direct basis. Relevant to this claim, the Board observes that every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Here, in connection with his service entrance examination, the Veteran reported fracturing his left arm when he was 15 years old and that doctors "set" his bone. He denied a history of painful or "trick" elbow, and his upper extremities were found normal upon clinical evaluation. During service, treatment records reflect a left shoulder injury (for which service connection has been established), but are silent for any complaints relating to the left arm. At service separation, the Veteran's upper extremities were again found to be clinically normal. Post-service medical evidence documents the Veteran's first complaint of left arm numbness in April 2002. Subsequent VA treatment notes document the Veteran's continuing complaints of numbness and pain in his left arm and hand, but at no time has a VA medical professional linked his left arm symptomatology to his service-connected left shoulder injury residuals. In May 2010, the Veteran was afforded a VA examination to obtain a medical opinion as to whether the Veteran's neurological disability of the left upper extremity was caused or is aggravated by the residuals of his left shoulder injury. The Veteran reported that he first noticed left ulnar palsy in the early 1960s (post-service, after his shoulder injury) and that he received a diagnosis of such in the 1960s. He stated he did not notice ulnar palsy after his left arm fracture prior to service. The examiner found that the Veteran had ulnar palsy of the left upper extremity, but stated that he could not resolve the question of its relationship to the service-connected left shoulder injury "without resorting to mere speculation." In the December 2012 remand, the Board deemed this opinion insufficient as the Board could not find that the examiner did not invoke the phrase "without resort to mere speculation" as a substitute for full consideration of all pertinent and available medical facts. See Jones v. Shinseki, 23 Vet. App. 382, 387 (2010). Specifically, the examiner did not identify with precision the exact facts which could not be ascertained from the record, the presence of which would permit him to formulate an opinion as to the etiology of the Veteran's peripheral neuropathy/ulnar palsy. Moreover, while the VA examiner also stated that it was "conceivable" but "unlikely" "based on its constructure," he provided no explanation or rationale regarding how the constructure would impact the likelihood of a relationship between the Veteran's disorders or possible etiologies for the Veteran's neurological disability of the left upper extremity. The examiner also did not discuss whether the Veteran's neurological disorder had been aggravated by residuals of his in-service shoulder injury and subsequent hemiarthroplasty. Pursuant to the Board's remand, the Veteran underwent VA examination in February 2013. The examiner found that it was less likely as not that the Veteran's left arm neurological impairment was caused or aggravated by residuals of his left shoulder injury and subsequent shoulder hemiarthroplasty surgery. The examiner reasoned: The Veteran suffered a supracondylar humerus fracture prior to entering the military. This required traction and casting and left him with permanent loss of extension of the elbow. Ulnar nerve palsies are part of the natural history of such injuries with loss of extension. History, exam and EMG studies are consistent with ulnar nerve palsy and carpal tunnel syndrome and not with radiculopathy or evidence of brachial plexus injury. If his symptoms were due to the shoulder injury or aggravated by the shoulder injury or subsequent surgeries, one would expect signs and symptoms of never damage proximal to the elbow. He does not have these signs or symptoms. Carpal tunnel syndrome is very common. He had it bilaterally and worse on the right side. His carpal tunnel syndrome is most likely related to his decades of manual labor work with his hands for phone companies. Symptoms improved after surgery. Here, the Board notes the examiner's discussion of the Veteran's left arm fracture prior to service entry, the resulting loss of extension of the elbow and that ulnar nerve palsies are a natural progression of such. Through these comments, the Board finds that the February 2013 examiner has raised, but has not clearly resolved, questions as to whether the Veteran entered service with pre-existing left arm nerve impairment, and, if so, whether such disability was aggravated by service. Under these circumstances, the Board finds that further medical opinion in this regard is needed to resolve the claim on appeal. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hence, the RO should obtain an addendum opinion from the same examiner who issued the February 2013 opinion. Prior to arranging to obtain the addendum opinion, to ensure that all due process requirements are met, and that the record is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As regards VA records, the claims file currently includes records dated from March 2002 to May 2010 from the Portland VAMC and two of its affiliated facilities-the North Coast CBOC and the Hillsboro (Metro West) CBOC-the most recent of which are dated in May 2010. However, as it appears that the Veteran is receiving continuing treatment at these facilities for neurological disability and other disorders of his left arm and shoulder, more recent records from these facilities may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the Portland VAMC and affiliated facilities any outstanding records of evaluation and/or treatment of the Veteran since May 2010, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Portland VAMC and affiliated facilities (to include the North Coast and Hillsboro (Metro West) CBOC)) any outstanding, pertinent records of evaluation and/or treatment of the Veteran dated since May 2010. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the claim that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record, following the procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, return the claims file to Dr. M.D.B, the VA physician who conducted the February 2013 examination, for an addendum opinion addressing the relationship, if any, between current neurological disability of the left upper extremity and the Veteran's service. The physician should render an opinion, consistent with sound medical judgment, as to: (a) whether left arm nerve impairment clearly and unmistakably existed prior to service entrance, and, if so (b) whether left arm nerve impairment was clearly and unmistakably not aggravated (i.e., permanently worsened beyond the natural progression) during or as a result of service. If left arm nerve impairment did not clearly and unmistakably exist prior to service, the examiner should opine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that current neurological disability of the left upper extremity had its onset in or was otherwise incurred in service. The entire claims file, to include complete copy of the REMAND must be made available to the physician, and the addendum opinion should include discussion of the Veteran's documented medical history and assertions. The physician should set forth complete, clearly stated rationale for the conclusions reached, in a printed (typewritten) report. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the matter on appeal in light of all pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). The RO is reminded that this appeal has been advanced on the Board's docket. ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs