Citation Nr: 1318070 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 10-28 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of a right elbow ulnar nerve transposition, claimed as a right elbow condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from January 1954 to August 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to service connection for a right elbow condition, as well as entitlement to a disability evaluation in excess of 10 percent for a service connected right elbow scar. The Veteran has only appealed the denial of service connection for a right elbow condition. In his June 2010 substantive appeal, the Veteran requested a hearing before a member of the Board, but he failed to report to his April 2013 Travel Board hearing without providing good cause. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Veteran is seeking entitlement to service connection for residuals of an in-service right elbow ulnar nerve transposition. In a December 2008 statement and May 2009 notice of disagreement, the Veteran clarified that he is seeking entitlement to service connection for nerve damage which manifests as pain and intermittent numbness and tingling in the right pinky and ring fingers, as well as a "snapping" sensation with movement of the elbow. In May 2009, the Veteran was afforded a VA orthopedic examination of his right elbow. At that time, the Veteran was noted to have some pain with the extremes of flexion and a snapping tendon over the medial epicondyle, but sensation was intact to light touch and Tinel's sign was negative. The examiner concluded that the Veteran's current right elbow condition was less likely than not the same condition he suffered from in military service. The examiner explained that the Veteran was treated in service for ulnar nerve entrapment which includes symptoms such as numbness and tingling in the ulnar nerve distribution and stated that the Veteran had only described symptoms of pain, not numbness and tingling. The examiner attributed the Veteran's current disability to mechanical symptoms secondary to a snapping tendon in his right elbow. However, the Board notes that contrary to the examiner's findings, the Veteran has reported symptoms of numbness and tingling in his fingers, albeit of an intermittent nature. Accordingly, the Board finds that the Veteran should be afforded a VA neurological examination to determine whether the Veteran has a current peripheral nerve disability affecting his right upper extremity, and, if so, whether it is at least as likely as not that this disability was caused or permanently aggravated by the Veteran's active military service, to include his in-service right elbow ulnar nerve transposition. The Board observes that in Ardison v. Brown, 6 Vet. App. 405, 407 (1994), the Court held that where fluctuating conditions escape detection on examination, VA must conduct an examination during the active stage of the disease. In this case, the Veteran has described his neurological symptoms as intermittent, and he should be examined during a period in which he is symptomatic. The Board notes that this will require the cooperation of both the RO and the Veteran. The RO is asked to accommodate the intermittent nature of the Veteran's disability by promptly scheduling the Veteran for a VA neurological examination as soon as they are notified by the Veteran that his disability has entered an active phase. The Veteran, for his part, has a responsibility to promptly notify the RO when his disability has entered an active phase so that an examination of his condition can be scheduled. Additionally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the Veteran was provided notice of how to substantiate his increased rating claim in December 2008, but was not provided with notice of how to substantiate a service connection claim. On remand, the Veteran should be provided with such notice. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran with notice of how to substantiate a service connection claim pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) and Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. When the Veteran's right elbow condition is symptomatic, the Veteran should notify the RO. Once this is done, the RO should schedule the Veteran for a VA peripheral nerve examination. The examiner should provide a diagnosis of the Veteran's right elbow condition, if any, and note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any. The VA examiner is asked to render an opinion as to whether it is at least as likely as not (fifty percent or greater) that the Veteran's current right elbow condition had onset in service or was caused or permanently aggravated by the Veteran's active military service, to include whether it is secondary to the Veteran's in-service right elbow ulnar nerve transposition. A complete rationale for this opinion should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. Additionally, the examiner is also reminded to consider the Veteran's lay statements regarding the nature and onset of his disability. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing, including nerve conduction and EMG testing, performed. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 3. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). 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). _________________________________________________ JOHN Z. JONES 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).