Citation Nr: 1328718 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 07-22 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a bilateral hand condition, to include neuropathy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran had active service form December 1990 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claim for service connection for a bilateral hand condition. The Board denied the Veteran's claim for entitlement to service connection for a bilateral hand condition in a February 2011 decision. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a September 2012 Memorandum Decision, the Court to vacated the February 2011 decision as to such issue. The issue returns to the Board for further consideration. 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 Remand is required in order to obtain additional records and, depending on the results thereof, to obtain a VA medical nexus opinion as to whether the Veteran's diagnosed bilateral median neuropathy at the carpal tunnel is at least as likely as not due to his service, to include reported exposure to radiation, hydraulic fluid, and oil well fires in Southwest Asia between August 1, 1991 and October 31, 1991. First, the Agency of Original Jurisdiction (AOJ) should send the Veteran a letter clarifying whether there is any additional evidence which he would like VA to obtain on his behalf regarding his claim for service connection for a bilateral hand condition, including from Jackson Medical Center, Baptist Hospital, and the Jackson South Medical Center. The AOJ should also provide the Veteran with a VA Form 21-4142 or other appropriate form to obtain the Veteran's authorization to request those documents. The Veteran listed those sources in his January 2012 Informal Brief to the Court, but it is unclear whether he believes that those sources have records which are pertinent to his claim for service connection for a bilateral hand disorder, and whether the April 2001 records from Baptist Hospital (received after the Board's February 2011 decision) and the January 2001 through May 2006 records from the Jackson Health System (received after the Court's September 2012 Memorandum Decision) in his claims file satisfy his request for records from those sources. Second, the AOJ should make efforts to re-locate the Veteran's service treatment records (STRs). The RO listed the Veteran's STRs as being among the evidence that it reviewed in its October 2005 rating decision and May 2007 statement of the case, and the Board likewise wrote in February 2011 that it had reviewed the STRs. However, the STRs are no longer present in the claims file available to the Board. On remand, the RO should attempt to locate the Veteran's STRs. Third, the AOJ should attempt to obtain the Veteran's medical records from his service in the Reserves, which lasted from December 9, 1992 through January 1, 1999. Such records should serve to verify the Veteran's assertion in his July 2005 claim that his bilateral hand disability began in January 1993-one month after his separation from active duty service. Although the Veteran reported in his claim that he did not begin treatment for his bilateral hand disability until January 2003, the Reserves records should show whether the Veteran endorsed or denied the presence of the bilateral hand symptoms which he now reports began in January 1993. Thereafter, the AOJ should obtain a VA medical nexus opinion as to whether the Veteran's diagnosed bilateral median neuropathy at the carpal tunnel is at least as likely as not due to his service. Accordingly, the case is REMANDED for the following action: 1. The AOJ should send the Veteran a letter clarifying whether there is any additional evidence which he would like VA to obtain on his behalf regarding his claim for service connection for a bilateral hand condition, including from Jackson Medical Center, Baptist Hospital, and the Jackson South Medical Center. In the letter, the AOJ should inform the Veteran that VA is already in possession of April 2001 records from Baptist Hospital, and January 2001 through May 2006 records from the Jackson Health System. After securing any necessary authorization, obtain all identified treatment records. 2. The AOJ should attempt to locate the Veteran's service treatment records which are no longer associated with his claims file. If those records cannot be obtained after reasonable efforts have been made, that should be documented and the appellant allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. The AOJ should attempt to obtain any available medical records from the Veteran's service in the Reserves, which lasted from December 9, 1992 through January 1, 1999. Efforts to accomplish this should be documented. 4. Upon completion of the foregoing, the AOJ should obtain a VA medical nexus opinion from a knowledgeable source as to whether the Veteran's diagnosed bilateral median neuropathy at the carpal tunnel is at least as likely as not (50 percent or better probability) due to his service. In forming an opinion, the provider should be aware that the Veteran has asserted that his bilateral hand symptoms began in January 1993, and a VA physiatrist diagnosed the Veteran with bilateral median neuropathy at the wrists and bilateral ulnar neuropathy at the elbows in October 2002, and with bilateral ulnar neuropathy at the elbows and bilateral median neuropathy at the carpal tunnel (mild in the left hand) in September 2006. In his October 2006 notice of disagreement, the Veteran attributed his bilateral hand condition to reported exposure to radiation, hydraulic fluid, and oil well fires in Southwest Asia between August 1, 1991 and October 31, 1991, and denied exposure to any other hazardous conditions which he believes could have caused his bilateral hand disorder. The rationale for any opinion offered should be provided. If the author is unable to render an opinion without a resort to speculation, then the author must explain why this is so. An examination of the Veteran is not necessary unless deemed so by the opinion provider. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the appellant and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matter 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 E. KILCOYNE 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).