Citation Nr: 1325661 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 09-39 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for right shoulder disability, claimed as secondary to service-connected left shoulder disability. 2. Entitlement to left arm/hand disability, claimed as secondary to service-connected left shoulder disability. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from July 1958 to October 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated December 2007 and February 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the Veteran's claims. During the course of the appeal, jurisdiction of the Veteran's case was transferred to the St. Petersburg, Florida, RO. In April 2013, the Veteran presented sworn testimony during a personal hearing in St. Petersburg, Florida, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. The issues on appeal are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the claims on appeal - entitlement to service connection for disabilities of the right shoulder and left arm/hand- must be remanded for further development. In his September 2006 claim, the Veteran asserted that he is in receipt of disability benefits through the Social Security Administration based, in part, on his shoulder disabilities. See the Veteran's claim dated September 2006. These records are potentially pertinent to his pending claims and should therefore be obtained for consideration in connection with the issues on appeal. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (VA's duty to assist includes obtaining records from SSA and giving appropriate consideration and weight in determining whether to award or deny VA disability compensation benefits). Further, as to the left arm/hand claim, service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2012); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 1 Vet. App. 509, 512 (1998). In this matter, it is undisputed that the Veteran is currently service-connected for degenerative arthritis of the left shoulder. See, e.g., the February 2009 rating decision and the VA examination report dated July 2012. With respect to current disability, the Veteran has repeatedly asserted that he suffers from weakness and pain in his left arm/hand. See, e.g., the April 2013 Board hearing transcript, pgs. 8-10. The Veteran also testified that he has no control over his left hand and will sometimes grab other people without knowing. Id. The Veteran was recently afforded VA examinations dated September 2011 and July 2012 which addressed his claimed left arm/hand disability. In the September 2011 VA examination report, the examiner diagnosed the Veteran with tremors of the left hand/arm and, with respect to medical nexus, indicated the following: "his left hand/arm disability is other neurological etiology, possible Parkinson disease or parkinsonism. Further evaluation per primary care physician or neurology is needed." In the July 2012 VA examination report, the examiner diagnosed the Veteran with arthritis of the left hand and provided a negative nexus opinion with detailed rationale. Critically, however, the July 2012 VA examiner did not additionally address the claimed neurological symptoms of the left arm/hand to include the tremors and shooting pain and weakness extending from the left shoulder through the left hand, as claimed by the Veteran. See, e.g., the April 2012 Board hearing transcript. Moreover, electromyogram (EMG) and nerve conduction studies were not conducted by either VA examiner with respect to the claimed left hand/arm disability. Symptoms of the left arm/hand including weakness are noted in VA treatment records dated February 2012, July 2012, and May 2012. In the February 2012 neurology addendum note, the attending neurologist diagnosed the Veteran as follows: "1. Left-sided weakness/hyper-reflexia, concern for mass/structural lesion of brain or c-spine given history of lung mass of unknown etiology; 2. Resting tremor but no other features of Parkinsonism, may be secondary to same etiology as the left hemiplegia." The neurologist recommended that magnetic resonance imaging (MRI) of the Veteran's brain and cervical spine be conducted to aid in diagnosis. Notably, in a July 2012 VA treatment record, the Veteran's treatment provider diagnosed him with intention tremors of the left side and noted a history of left hemiparesis. The treatment provider also indicated that cerebral atrophy was seen on recent brain MRI and opined that the Veteran could have cerebrovascular disease. See the VA treatment record dated July 2012. Accordingly, a review of the record demonstrates that no definitive diagnosis has been made with respect to the neurological symptoms in the Veteran's left arm/hand. Thus, there remain questions as to diagnosis and etiology of the Veteran's claimed left arm/hand disability. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim) and Colvin v. Derwinski, 1 Vet. App. 191, 195 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). A remand for a new VA examination should therefore be accomplished in order to address these outstanding questions with respect to the Veteran's left arm/hand claim. Additionally, review of the record reflects ongoing VA medical treatment. Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran's claims file. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. Request from SSA the records pertinent to the Veteran's claim for Social Security disability benefits and the medical records relied upon concerning that claim. 2. After obtaining the appropriate releases where necessary, procure any records of outstanding treatment and/or evaluation that the Veteran has recently received. The Board is particularly interested in VA treatment records dating from September 2012. All such available documents should be associated with the claims file. 3. Thereafter, schedule the Veteran for a VA examination with a medical professional of appropriate expertise to determine the nature and etiology of any neurological disability affecting the left arm/hand manifested by radiating pain and weakness. The claims file, including a copy of this Remand, must be made available to the examiner for review in connection with the examination. All pertinent pathology should be annotated in the examination report. Pertinent testing deemed necessary, including EMG and nerve conduction study, should be accomplished; the results of any such studies should be included in the examination report. Following review of the claims file and examination of the Veteran, the examiner should either diagnose or rule out a neurological disability of the left arm/hand. If a neurological disability of the left arm/hand is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the left arm/hand disability was caused or aggravated (permanently worsened beyond natural progression) by the Veteran's service-connected disabilities to include the left shoulder disability. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 4. Thereafter, readjudicate the claims on appeal. If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (the Court) 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 is appealable to the Court. 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).