Citation Nr: 1328306 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 10-45 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to a service-connected disability of the left upper extremity. 2. Entitlement to service connection for a bladder condition. 3. Entitlement to service connection for irritable bowel syndrome. 4. Entitlement to a disability characterized as fatigue, joint and muscle pain (also claimed as fibromyalgia). 5. Entitlement to a disability evaluation in excess of 20 percent for a lumbar spine disability. ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from December 1984 to June 1995 with active duty in the Army National Guard from March 2003 to October 2003 and from March 2004 to February 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2010 and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The January 2010 rating decision increased the disability evaluation for the Veteran's lumbar spine disability to 20 percent, effective as of August 21, 2009, and the July 2010 rating decision denied service connection for the remaining issues on appeal. In a February 2012 written statement, the Veteran withdrew his request for a Board hearing. As such, the claim will proceed without a hearing. See 38 C.F.R. § 20.704(e). 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 is seeking service connection for a number of disabilities, as well as a higher rating for a lumbar spine disability. Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As an initial matter, the Board notes that the Veteran indicated in April 2012 that he was entitled to service connection as a Gulf War Veteran under 38 C.F.R. § 3.317. The Veteran is incorrect in his assertion. Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War. The Veteran did not serve in the Southwest Asia Theater of operations and he has conceded this fact. While the Veteran has argued that he still qualifies because he received vaccinations in preparation for going to Southwest Asia, he is incorrect in this assertion. The law is clear, and since the Veteran did not serve in Southwest Asia, 38 C.F.R. § 3.317 is inapplicable. Regarding the Veteran's claim for an increased disability evaluation for his lumbar spine disability, the record reflects that he was last afforded a VA examination for this disability in September 2009. However, in his November 2010 appeal to the Board, the Veteran asserted that his range of motion was now less than that reflected by the previous examination report. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). As such, the Veteran should be afforded the opportunity to appear for a more recent examination to determine the current level of severity of his lumbar spine disability. As for the Veteran's claims of entitlement to service connection for radiculopathy of the right upper extremity, irritable bowel syndrome, a bladder disorder and chronic fatigue/fibromyalgia, he should be scheduled for a VA examination to determine the appropriate diagnosis associated with his claimed conditions. In addition, there is evidence to suggest that at least some of these conditions may be secondary to his service- connected lumbar spine disability. As such, the examiner should also opine as to whether any diagnosed disability is at least as likely as not that any of these conditions were either caused by, or aggravated by his service-connected lumbar spine disability. The Veteran has also asserted that his radiculopathy of the right upper extremity is secondary to his service-connected disability of the left upper extremity due to overuse as a result of compensating for his left arm. The examiner should, therefore, opine as to whether it is at least as likely as not that radiculopathy of the right upper extremity was either caused by, or permanently aggravated by, service-connected disabilities of the left upper extremity. Finally, the Veteran has argued that these disabilities arose as a result of the Anthrax vaccination. The Veteran's personnel records reflect that he did receive this vaccination through 2003 and 2004. The Veteran has provided VA with no evidence regarding potential side-effects of the Anthrax vaccination - assuming that any such side-effects exist. Nevertheless, as this claim is being remanded for other reasons, the examiner should also offer a medical opinion as to whether it is at least as likely as not that any of the Veteran's claimed disabilities manifested as a result of the Anthrax vaccination. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA examination(s) before an appropriate physician(s) regarding his claims of entitlement to service connection for radiculopathy of the right upper extremity, a bladder condition, irritable bowel syndrome and chronic fatigue/fibromyalgia. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination and the examination report should reflect review of these items. The examiner(s) should address the following: (a) Does the Veteran currently suffer from any of the following disabilities: (i) Radiculopathy of the right upper extremity; (ii) Chronic Bladder Condition; (iii) Irritable Bowel Syndrome; (iv) Chronic Fatigue/Fibromyalgia. (b) If the Veteran is found to suffer from any of the above conditions, the examiner should offer an opinion for each diagnosed disability. Specifically, is it at least as likely as not that the diagnosed disability manifested during, or as a result of, active military service. The examiner should note that the Veteran did not serve in Southwest Asia during his military service. (c) For any diagnosed disability, is it at least as likely as not that this condition arose secondary to the Anthrax vaccination? A complete rationale supported by medical evidence/literature should be included for each opinion offered. (d) If the Veteran is found to suffer from radiculopathy of the right upper extremity, is it at least as likely as not that this condition was caused by or permanently aggravated by his service-connected residuals of a left elbow injury with cubital tunnel entrapment, to include as a result of overuse? (e) For any diagnosed disability, is it at least as likely as not that it was caused by, or permanently aggravated by, the Veteran's service-connected lumbar spine disability? Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. A complete rationale must be provided for all opinions offered, and the examiner should consider and discuss the Veteran's lay assertions when offering an opinion. 2. Finally, the Veteran should be scheduled for a VA examination before an appropriate physician to determine the current level of severity of his service- connected lumbar spine disability. All indicted tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran's spine disability, including limitation of motion and any periods of incapacitation due to intervertebral disc syndrome. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. A complete rationale must be provided for all opinions offered, and the Veteran's lay statements regarding his symptomatology must be considered and discussed. 3. The agency of original jurisdiction (AOJ) should then carefully review the medical opinions obtained to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the AOJ should return the case to the examiner for completion of the inquiry. 4. The AOJ should then readjudicate the claims on appeal in light of all of the evidence of record. If an issue remains denied, the AOJ should provide the Veteran a supplemental statement of the case as to the issue on appeal, and afford her a reasonable period of time within which to respond thereto. 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). _________________________________________________ WAYNE M. BRAEUER 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).