Citation Nr: 1320907 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 10-03 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a neurological disability of the bilateral upper extremities, to include carpal tunnel sydrome. 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected irritable bowel syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from November 2003 to November 2007, with additional periods of inactive duty for training (INACDUTRA) and active duty for training (ACDUTRA) in the reserve component. There are apparently additional periods of activated service in the Marine Corps Reserve which remain to be verified. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The entire claims folder, to include the portion contained in the electronic "Virtual VA" system, has been reviewed. 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 in this case alleges that he developed a neurological disability in his bilateral upper extremities, namely carpal tunnel syndrome, as a result of his active service in the Marine Corps between 2003 and 2007. Further, he contends that his service-connected irritable bowel syndrome, currently evaluated as 10 percent disabling, is more severe than what is contemplated by the current rating. At the outset, the Board notes that it has received a newer set of service treatment records for the Veteran which, purportedly, document additional active duty service than what is currently confirmed. Indeed, the National Personnel Records Center (NPRC) has verified the Veteran as having had service from November 2003 to November 2007, with service in the reserve component noted to be present after the release from active duty. New service treatment records, with entries dated in 2010 and 2011, contain treatments afforded to the Veteran while at Camp Leatherneck. This facility is in the Helmand Province of Afghanistan, and the Veteran apparently performed some type of duty at that facility while in an activated status with the Marine Corps Reserve. It is asked that the NPRC be contacted to verify all active duty periods subsequent to November 2007, to include any duty performed while in an activated status with the Marine Reserves. Regarding the merits of the claims, the Board notes that the Veteran has alleged that he developed carpal tunnel syndrome in 2004 while on active duty. This was reported to a VA examiner in a general medical examination of August 2008, which was only nine months after separation from the last confirmed period of active duty. The examiner concluded that the symptoms noted at that time were not consistent with carpal tunnel syndrome, and no further testing was ordered. In February 2010, the Veteran was suspected of having carpal tunnel syndrome by a VA neurologist, and an electromyelography study (EMG) was ordered. It was noted that the need for an EMG had been documented in an earlier clinical consultation of December 2009. There is no record of an EMG test ever having been performed on the Veteran. Should VA have ever performed such a test, it is critical that the results be obtained and associated with the claims file. Essentially, the RO denied the Veteran's claim for service connection for the neurological disability on the basis of there being no evidence of current disablement. The records submitted after the 2008 VA examination certainly show that neurological symptoms were present, and that further testing was necessary to determine what, if any, disability was present. While a VA neurologist has described the Veteran's symptoms as being suggestive of carpal tunnel syndrome, he did not confirm a diagnosis; however, he was adamant that an EMG would be beneficial in getting a proper diagnosis as to the nature of any currently present multiple neuropathies. Organic disorders of the nervous system, if present to a compensable degree within the first post-service year, will be presumed to have been incurred in active service. 38 C.F.R. §§ 3.307, 3.309. The Veteran was not afforded a neurological examination in August 2008, with that examination being focused on general, overall health. The Veteran had neurological complaints at that time; however, the examiner felt that further testing was not warranted. Shortly thereafter, in 2009 ane 2010, a neurologist felt that additional testing was warranted, and an EMG was ordered but apparently never afforded. Given this, the Board is of the opinion that a comprehensive VA neurology examination should be afforded to determine the nature and etiology of any neurological disability in the bilateral upper extremities. EMG and other necessary testing should be afforded, and the examiner should, after review the complaint history and evidentiary record, opine as to if it is at least as likely as not that any neurological disorder of the bilateral upper extremities had causal origin in service, or, alternatively, manifest to a compensable degree within the first post-service year. See McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006). Regarding the claim for an increase in rating for service-connected irritable bowel syndrome, the Board notes that the Veteran was last examined in August 2008 at the general medical examination. Since that time, he has alleged an increase in symptoms, with his substantive appeal to the Board listing complaints of an increasing frequency of gastrointestinal symptoms. In claims for an increase in rating, it is paramount to have a current and accurate understanding of the service-connected disability picture. While the date of a VA examination, in itself, is generally not a sufficient reason to remand for additional findings, in this case, the Veteran has specifically alleged a worsening in symptoms since he was last seen by VA examiners almost five years ago. Given this, the Board will remand the claim so that a new, comprehensive gastrointestinal examination can be afforded. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Hyder v. Derwinski, 1 Vet. App. 221 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records, to include any EMG studies performed in 2009 and/or 2010. If no records exist, so annotate the record (the Veteran himself should submit any pertinent medical records). 2. Contact the NPRC and verify any additional periods of active duty performed after November 2007, to include any service in 2010 and 2011 as an activated member of the Marine Corps Reserve in Afghanistan. Add any additional verified dates of service to the claims file. 3. Schedule the Veteran for comprehensive VA neurological and gastrointestinal examinations. The respective examiners are asked the following: a) The neurological examiner is asked: is it at least as likely as not (50 percent probability or greater) that the Veteran currently experiences a neurological disability of the upper extremities, to include bilateral carpal tunnel syndrome, and if so, is it at least as likely as not that any such disability had causal origins in service or, alternatively, manifest to a compensable degree within the first post service year? EMG studies and any other testing necessary to answer this question should be afforded (if needed). b) The gastrointestinal examiner is asked to determine the current level of severity of service-connected irritable bowel syndrome. All necessary testing should be performed, and the results should be associated with the claims file. With regard to both examinations, the respective examiners are to be reminded that rationales must accompany all conclusions reached in the narrative portion of the examination reports, and that speculative opinions are unhelpful and will require additional remand for remedial action. 4. Following the above-directed development, re-adjudicate the Veteran's claims. Should the claims not be granted in their entirety, issue an appropriate supplemental statement of the case (SSOC) and dispatch the claims to the Board for adjudication. 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). _________________________________________________ JOHN J. CROWLEY 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).