Citation Nr: 1320649 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 06-11 139A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUE Entitlement to an initial compensable rating for C-6 radiculopathy of the left arm associated with degenerative disc disease of the cervical spine. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from September 1973 to January 2003. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2006 decision by the RO which granted, in part, service connection for degenerative disc disease of the cervical spine with left arm pain and paresthesias and assigned a 10 percent rating. The Board remanded the issue currently on appeal for additional development in February 2009, November 2010, and in September 2012. Unfortunately, as is explained below, the appeal is REMANDED again to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Although further delay is regrettable, the Board finds that additional development must be accomplished prior to considering the merits of the Veteran's appeal. As noted above, in February 2006 the RO, in part, granted service connection for degenerative disc disease of the cervical spine with left arm pain and paresthesias, and assigned a 10 percent evaluation. The Veteran disagreed with the rating assigned and asserted that he should be granted a separate compensable rating for the upper extremity neurological symptoms associated with the cervical spine disability, giving rise to this appeal. In November 2010, the Board denied, in part, a rating greater than 10 percent for the orthopedic aspect of the cervical spine disability. The Board also found that the January 2011 VA examination addressing the Veteran's neurological symptoms was inadequate and remanded the appeal for additional development. Specifically, the January 2011 VA examination report did not provide sufficient information concerning the nature and extent of neurological symptoms associated with the cervical spine disability. Although the Veteran subsequently was re-examined by VA in May 2012, the Board found that examination also was inadequate because it did not identify what specific neurological symptoms were associated with the service-connected cervical spine disability alone. Since service connection also is in effect for bilateral carpal tunnel syndrome, the Board was unable to determine from the May 2012 VA examination report which symptoms were associated with the cervical spine versus the bilateral wrist disability. Therefore, the Board remanded the appeal again in September 2012 to address these deficiencies. In an addendum dated in November 2012, the May 2012 VA clinician referred to the findings from a July 2012 VA EMG study which was reported to have shown decreased biceps reflexes, absent brachioradialis reflexes, and decreased sensation in the left upper extremity associated with the C5-6 distribution with mild incomplete paralysis of the long thoracic nerve. Upon review of the claims file and Virtual VA, the Board has been unable to locate the July 2012 VA EMG study. In fact, a notation in the claims file indicated that the Veteran had cancelled the scheduled appointment for an EMG study in July 2012. The United States Court of Appeals for Veterans Claims (Court) has held that VA is on constructive notice of all documents generated by VA, even if the documents have not been made part of the record in a claim for benefits. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998), and Bell v. Derwinski, 2 Vet. App. 611 (1992). Thus, on remand, the Veteran's July 2012 VA EMG report must be obtained and associated with the claims file. Next, the Board notes that the May 2012 VA neurological examination report indicated that the Veteran had mild incomplete paralysis of the median and long thoracic nerve. The December 2012 addendum report indicated that only the long thoracic nerve was involved, however. Given this discrepancy in the record evidence, the Board finds that further clarification is needed to determine the specific nerve(s) associated with the cervical spine disability. Finally, the Board notes that while the RO granted a separate noncompensable evaluation for C-6 radiculopathy of the left arm associated with degenerative disc disease of the cervical spine in February 2013, the Veteran was not provided with the appropriate regulations pertaining to the rating codes under which the neurological disability is to be evaluated. See 38 C.F.R. § 19.29(b). Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to obtain the July 2012 VA EMG study referred to in the November 2012 VA neurological report and associate this report with the claims file. 2. Schedule the Veteran for appropriate examination to determine the extent and severity of any upper extremity symptoms associated with the cervical spine disability. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted, to include another EMG/NCV study. The Veteran should be asked to provide a complete medical history, if possible. The examiner must identify all neurological complaints and findings attributable to the cervical spine disability. If the Veteran has neurological symptoms associated with his cervical spine disability, then the examiner should discuss the degree of any residual weakness or sensory disturbance and how it impacts on motor function of the cervical spine. The examiner also should state whether the Veteran has recurring attacks of intervertebral disc syndrome referable to the cervical spine and, if so, indicate the degree of intermittent relief he experiences between those attacks. The examiner should state whether any intervertebral disc syndrome that may be present in the cervical spine results in incapacitating episodes and indicate the total duration of any episodes for each spinal segment. 3. The Veteran should be given adequate notice of the requested examination which includes advising him of the consequences of his failure to report to the examinations. If he fails to report to the examinations, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 4. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues, to include specifically the appropriate Diagnostic Codes used to rate the Veteran's neurological disability. An appropriate period of time should be allowed for response by the Veteran and her service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Veteran 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). _________________________________________________ MICHAEL T. OSBORNE Acting 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).