Citation Nr: 1323151 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 07-26 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for right lateral epicondylitis, to include as secondary to the service-connected right shoulder disability. 2. Entitlement to service connection for right cubital tunnel syndrome, to include as secondary to the service-connected right shoulder disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from February 1997 to June 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision OF The Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee. In February 2008, the Veteran testified at a Video Conference Hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with the claims file. This matter was previously before the Board in January 2009 and August 2011 at which time it was remanded for additional development. It is now returned to the Board. The Board notes that the issue on appeal initially was framed as entitlement to service connection for a disability manifested by right arm and hand pain and numbness. As a VA examiner in July 2009 provided a diagnosis of right lateral epicondylitis and right cubital tunnel syndrome, the Board recharacterized the issues as reflected on the cover page. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). In its August 2011 Remand, the Board directed that the Veteran be scheduled for a new VA examination with an appropriate expert to determine the nature and etiology of any current right arm and hand disabilities, to include right lateral epicondylitis and right cubital tunnel syndrome. In pertinent part, the Board specifically requested that an opinion be provided as to whether it is at least as likely as not that the Veteran's currently diagnosed right arm or hand disability was caused and/or aggravated (permanently worsened) by her service-connected right shoulder disability. While the VA examiner in September 2011 provided an opinion as to whether the asserted disabilities were caused by the in-service event, no opinion was provided as to whether the asserted right arm or hand disability are aggravated by the service-connected right shoulder disability. The August 2011 Board Remand conferred on the Veteran the right to compliance with the remand instructions, as a matter of law. See Stegall v. West, 11. Vet. App. 268, 271 (1998). The Board's failure to ensure compliance would constitute error in this case. Id. Thus, in order to comply with the Board's previous remand, the RO/AMC is required to conduct the development requested by the Board in order for the Veteran's claim to be fully and fairly adjudicated. In this regard, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2011); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for her asserted disabilities should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall obtain and associate with the record any outstanding contemporaneous treatment records of the Veteran. All actions to obtain the requested records should be documented fully in the claims file. 2. The RO/AMC shall forward the claims file and any relevant records contained in the Virtual VA paperless claims file to the physician that conducted the September 2011 VA examination, to provide an opinion as to whether it is at least as likely as not that the service-connected rotator cuff tendonitis of the right shoulder either, (a) caused or (b) aggravates (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) the asserted right arm or hand disabilities. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. If further examination of the Veteran is deemed necessary, the Veteran shall be scheduled for such VA examination to obtain the above-noted opinions. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 3. The RO/AMC shall review the Veteran's claims file and ensure that the foregoing development actions have been completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it must be undertaken. If the appeal is returned to Board without compliance of the remand directives, another remand will likely result. See Stegall, 11 Vet. App. at 271. 4. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and her representative must be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until she is so informed. She 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ J.A. MARKEY 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).