Citation Nr: 1318338 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 07-10 175A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for a right hand and wrist disability. 2. Entitlement to service connection for the residuals of a fracture of the fourth toe of the left foot. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty in the United States Air Force from August 1985 to August 2005. This matter comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Baltimore, Maryland. The RO, in pertinent part, denied the benefits sought on appeal. In the original August 2005 claim, the appellant sought entitlement to service connection for a broken toe of the right foot. Service treatment records dated in May 2004 include treatment for fracture of the fourth toe of the left foot. Accordingly, the RO adjudicated a recharacterized claim for a broken left toe, which the appellant appealed. In March 2012, the RO awarded service connection for ingrown toenail removal as a residual of a great toe fracture of the left foot and did not issue a supplemental statement of the case regarding fracture residuals of the fourth left toe. In the October 2012 informal hearing presentation, the appellant, through his representative, indicated that he desired to continue an appeal for a broken left toe. The issue of service connection for a broken fourth left toe remains on appeal. In his August 2005 claim, the appellant listed a "right hand untunnal" disorder as his claimed disability and the RO adjudicated the claim as a right hand disability. The March 2011 VA examination report for the right hand suggested that the appellant had a right wrist disability, as opposed to a right hand disability. For purposes of the appeal, the Board will consider the claimed right hand disability as encompassing a right wrist disability. See also Clemons v. Shinseki, 23 Vet. App. 1 (2009). The record reflects that the appellant originally requested a Central Office hearing before the Board; however, that request was withdrawn in November 2009. As such, there are no outstanding hearing requests of record. 38 C.F.R. § 20.702(e) (2012). In June 2010, the Board remanded the appeal for additional development. In various rating decisions following the June 2010 remand, the RO granted service connection for left and right knee disabilities, a vision disorder, a right foot fallen arch, and residuals from bilateral ingrown great toe nail removal. As these rating actions result in a full grant of the benefit sought (i.e. service connection), these issues are no longer on appeal. In October 2012, the Board then issued a Decision/Remand on the four issues that were remaining on appeal. In that action, the Board granted entitlement to service connection for a disability of the lumbar segment of the spine and denied entitlement to service connection for bilateral hearing loss. The remaining two issues involving the left foot and right hand/wrist were remanded to the RO via the Appeals Management Center (AMC), in Washington, DC, for the purpose of obtaining additional medical evidence. The claim has since been returned to the Board for review. A review of the Virtual VA paperless claims processing system does not show any pertinent records that are not already associated with the claims folder. Regrettably, the appellant is once again REMANDED the RO via the AMC. VA will notify the appellant if further action is required. REMAND As noted above, the Board remanded the two issues now on appeal in October 2012. The purpose of that remand was to obtain additional medical information concerning the presence and etiology of any disability of the fourth toe of the left foot and a right hand/wrist disorder. The record reveals that the appellant underwent a Compensation and Pension Examination by a physician in December 2012, the results of which are contained in the claims folder. The medical results were forwarded to the AMC which, in turn, confirmed the RO's previous denial of benefits. The examiner in December 2012 found that the appellant did not have a current disorder, disability, or disease of the fourth toe of the left foot. However, x-ray films of the foot and fourth left toe were not accomplished. As such, a determination was not made as to whether the joint of the fourth left toe was affected by arthritis, which is a ratable disability. Because there remains a question as to whether the appellant now has a ratable disability (arthritis) that can be classified as a residual of a fracture of the fourth toe of the left foot, the claim must be remanded to the AMC for additional medical development. With respect to the second issue on appeal, involving a disability of the right wrist/hand, this issue must also be returned to the AMC so that another medical examination of the hand/wrist may be obtained. More specifically, the medical evidence of record suggests that the appellant may now suffer from ulnar neuropathy and it is unclear whether this disorder may have resulted from service. The VA examiner in December 2012 provided a diagnosis concerning orthopedic disability of the right wrist/hand but did not comment upon any nerve damage or disability from which the appellant may have been suffering therefrom or may have experienced during the course of the appeal. Because there remains a question as to whether the appellant now has a neurological disability of the right wrist/hand that may be attributable to service, the claim must be remanded to the AMC for additional medical development. Accordingly, the case is REMANDED for the following actions: 1. The AMC should contact the appellant and ask that he identify all sources of medical treatment received since he left the US Air Force in 2005 for all of the disabilities now on appeal, and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source identified. The AMC is hereby put on notice that the appellant retired from active duty in 2005 after twenty-plus years of honorable military service, and, as such, may have received medical care through a TRICARE health provider or through a military installation health care facility. Copies of the medical records from all sources, including VA records, (not already in the claims folder) should then be requested. All records obtained should be added to the claims folder. If requests for any treatment records are not successful, the AMC should inform the appellant of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159 (2012). 2. Only after all of the service member's medical records have been obtained and included in the claims folder, the AMC should arrange for the appellant to be examined by a VA doctor in order to determine whether the appellant now suffers from either a right hand or right wrist disability, to include a neurological disorder. The examination should be accomplished by a neurologist. The claims folder and a copy of this remand are to be made available to the examiner to review prior to the review. The examiner should be requested to review the claims folder and state that this has been accomplished in the examination report. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner is asked to express an opinion as to whether the appellant now suffers from any type of disability, disorder, or disease of the right hand and/or right wrist, to include a neurological disorder, such as ulnar neuropathy, carpal tunnel syndrome, or a hypothema eminence abnormality, or any other type of disability of the right wrist/hand. For any disability found, the examiner should opine as to whether it is at least as likely as not (a probability of 50 percent or greater) related to the appellant's military service, caused by a service-connected disability, or aggravated by a service-connected disability (potentially relevant to the inquiry is the Veteran's service-connected low back disability). If aggravation (permanent worsening beyond its natural progression) is found, then the baseline level of disability prior to such aggravation should be noted. The examiner must provide complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the provided conclusions. If further testing or examination by other specialists is determined to be warranted in order to evaluate the conditions at issue, such testing or examination is to be accomplished prior to completion of the examination report. The examiner should not invoke the phrase "without resort to mere speculation" without first explaining the basis for such an opinion. That is, if the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination. For example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available, that would permit an opinion. If so, a qualified examiner should provide an opinion and/or the additional testing should be accomplished. If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether a specific service-connected disability can possibly cause the claimed condition, or the actual cause of the disability cannot be selected from multiple potential causes, this should be fully explained. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). As stated, the medical examiner must provide a comprehensive report including rationales for all opinions and conclusions, citing the objective medical findings leading to the examiner's conclusions. Again, in the doctor's report, the examiner must specifically discuss the appellant's contentions that he has experienced difficulties or symptoms in the hand/wrist since his retirement from service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). Additionally, if the examiner concludes that the appellant does not have a ratable orthopedic/neurologic disability of the right hand or wrist, or that any found disability of the right hand/wrist is not service-related, the examiner must explain in detail the reasoning behind this determination. The results proffered by the examiner must reference the complete claims folders and any inconsistent past diagnoses given. Finally, it is requested that the results be typed and included in the claims folder for review. 3. Only after all of the service member's medical records have been obtained and included in the claims folder, the AMC should arrange for the appellant to be examined by a VA podiatrist in order to determine whether the appellant now suffers from the residuals of a fracture of the fourth toe of the left foot. The claims folder and a copy of this remand are to be made available to the examiner to review prior to the review. The examiner should review the claims folder and state that this has been accomplished in the examination report. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examination should include radiographic films of the appellant's left foot and fourth toe and a determination made as to whether the appellant now suffers from arthritis of the left fourth toe. The examiner is asked to express an opinion as to whether the appellant now suffers from a disability of the left fourth toe, to include arthritis, and if he does, the examiner should also opine as to whether the found disability is at least as likely as not (a probability of 50 percent or greater) incurred in or related to the appellant's military service or, caused by a service-connected disability, or aggravated by a service-connected disability. (potentially relevant to the inquiry is the Veteran's service-connected low back, left knee, right hip, right knee, left leg radiculopathy, and fallen right arch disabilities). If aggravation (permanent worsening beyond its natural progression) is found, then the baseline level of disability prior to such aggravation should be noted. The examiner must provide complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the provided conclusions. If further testing or examination by other specialists is determined to be warranted in order to evaluate the conditions at issue, such testing or examination is to be accomplished prior to completion of the examination report. The examiner should not invoke the phrase "without resort to mere speculation" without first explaining the basis for such an opinion. That is, if the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination. For example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available, that would permit an opinion. If so, a qualified examiner should provide an opinion and/or the additional testing should be accomplished. If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether a specific service-connected disability can possibly cause the claimed condition, or the actual cause of the disability cannot be selected from multiple potential causes, this should be fully explained. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). As stated, the medical examiner must provide a comprehensive report including rationales for all opinions and conclusions, citing the objective medical findings leading to the examiner's conclusions. Again, in the doctor's report, the examiner must specifically discuss the appellant's contentions and whether the appellant now has arthritis in the joint of the left fourth toe. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). Additionally, if the examiner concludes that the appellant's does not have a disability of the fourth left toe or that if he has such a condition, it is not service-related, the examiner must explain in detail the reasoning behind this determination. The results proffered by the examiner must reference the complete claims folders and any inconsistent past diagnoses given. Finally, it is requested that the results be typed and included in the claims folder for review. 4. Following completion of the foregoing, the AMC must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the requested doctors' opinions. If the reports do not include fully detailed responses to the questions/comments asked therefor, the reports must be returned for corrective action. 38 C.F.R. § 4.2 (2012) and Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, the AMC should readjudicate the claims. If the benefits sought on appeal remain denied, the appellant and the appellant's accredited representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. 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 appellant need take no action unless otherwise notified. The purpose of the examinations requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the appellant is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by attending the requested VA examinations may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant has the right to submit additional evidence and argument on the matter or 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 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). _________________________________________________ ERIC S. LEBOFF 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).