Citation Nr: 1328743 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 05-24 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a low back condition. 2. Entitlement to service connection for numbness in both arms and legs. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from February 2003 to November 2003. He also served from March 1982 to June 1982, which appears to be active duty training per his service personnel records. He also had additional service in the National Guard. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2008, the Veteran testified a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In February 2009 and December 2012, the Board remanded the claims for further evidentiary development. The requested development was completed, and the case has now been returned to the Board for further appellate action. During the pendency of this appeal, by a rating decision in March 2013, the Appeals Management Center granted service connection for a low back condition, to include lumbar spondylosis. However, the issue remained on the certification form. The Board notes that the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and there are currently no pertinent records that are not also in the paper claims file. Any further development or adjudication of this Veteran's case should take into account this paperless claims file. The claim of entitlement to service connection for numbness in both arms and legs are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT Service connection for a low back condition was granted by the AMC in a March 2013 rating decision. CONCLUSION OF LAW As the Veteran's appeal concerning entitlement to service connection for a low back condition was granted by the AMC, there remains no justiciable case or controversy before the Board on this issue. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 19.7, 20.101 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran filed a claim for service connection for a low back condition in November 2003. The RO denied the Veteran's claim by rating action dated in June 2004. The Veteran timely submitted a notice of disagreement and perfected a substantive appeal. In February 2009 and December 2012, the Board remanded the claims for further evidentiary development. Following the additional development directed by the Board, by rating action dated in March 2013, the AMC granted service connection for a low back condition, to include lumbar spondylosis and assigned a 10 percent disability rating, effective from the date of claim on November 9, 2003, and a rating of 20 percent, effective February 5, 2013. The Veteran has not disagreed with effective date or the ratings assigned, and in any event, such would be downstream issues from the issue of service connection that was on appeal. See generally Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (because appellant's first appeal concerned rejection of logically up-stream element of service connection, appeal could not concern logically down-stream element of disability rating). Thus, because service connection was granted for the Veteran's low back condition, there remains no case or controversy regarding the issue of entitlement to service connection for a low back condition; thus, the appeal as to this issue is dismissed. 38 U.S.C.A. § 7105 (West 2002); see also Grantham, 114 F.3d 1156. ORDER The appeal of entitlement to service connection for a low back condition is dismissed. REMAND Further development is necessary for the remaining claim. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that the Veteran is afforded every possible consideration. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran initially claimed entitlement to service connection for a bilateral upper and lower extremity disability manifested by pain and numbness as secondary to the service-connected low back condition. More recently, in May 2013, the Veteran's representative asserted entitlement to service connection for the claimed disability as due to an undiagnosed illness from service in the Persian Gulf. In this regard, the Veteran described onset of numbness and pain in the upper and lower extremities following his service in Iraq and Kuwait in 2003. According to his DD Form 214, the Veteran served in Operation Enduring Freedom and served in Iraq and Kuwait from March 2003 to October 2003. The service records show that in September 1991 and October 2003 (during active duty), the Veteran reported pain and numbness in the upper extremities. A December 2003 electromyography (EMG) of the upper extremities revealed no abnormalities. On VA examination in December 2003, the Veteran complained of numbness and tingling in the arms and legs. He related onset of the condition in 2002. Following an examination of the Veteran, the examiner diagnosed neuropathic symptoms in the upper and lower extremities, which were determined to be of unknown etiology. An EMG of the upper extremities revealed no abnormalities and a nerve conduction (NCV) study showed nerves within normal limits in all extremities. The clinician found no evidence of peripheral neuropathy. On VA examination in December 2010, the Veteran complained of numbness of the extremities. The examiner determined that there were no neurologic findings of the lower extremities related to the back. However, the Board determined that the opinion was unclear as to whether the Veteran actually had no neurologic disability, or whether the Veteran did have a disability but it was not related to the back. Thus, the Board remanded for additional examination. On VA examination in February 2013, the examiner noted a nonspecific diagnosis of neuritis and plantar fasciitis, which were entered into the Veteran's VA problem list during a podiatry visit in August 2011, in relation to his complaints of pain and numbness in his feet. Alcohol related neuropathy was determined to be a possible etiology. At the time, his neurological sensation was found to be intact. The examiner determined that the Veteran did not have a lumbar spine-related neurologic deficit affecting the arms and legs. Additionally, the examiner indicated that there was no objective evidence of upper or lower extremity peripheral nerve disease, and on examination there was no objective evidence of a neurologic disability of the upper or lower extremities. As such, no diagnosis was rendered. As the Veteran served in Kuwait and Iraq during his period of service from February 2003 to November 2003, he had qualifying service for consideration under 38 C.F.R. § 3.317. The Board notes that under 38 U.S.C.A. § 1117 and 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, or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317(a)(1)(i). To date, his claims have not been considered under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. Thus, such consideration should be accomplished following a request to the 2013 VA examiner for an addendum opinion that addresses the undiagnosed illness theory of entitlement. Relevant ongoing medical records should also be obtained, to include any VA treatment records. 38 U.S.C.A. § 5103A(c) (West 2002); 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. Obtain relevant ongoing VA treatment records dated since March 2013, from the VA Medical Centers in Tuskegee, Alabama, and Montgomery, Alabama. 2. After completing the above-described development, return the claims file to the examiner who conducted the February 2013 VA spine examination, if available. If the examiner is not available, then the claims file should be forwarded to another physician for review and to obtain the requested opinions. If a new examination is deemed necessary to respond to the questions, one should be scheduled. Following review of the claims file and any additional examination deemed necessary, the examiner should respond to the following: (a) Are there objective signs and symptoms of the Veteran's neurological complaints in any upper and/or lower extremity? For reference, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. (b) If so, please indicate whether such objective signs and symptoms represent an undiagnosed illness, and provide an opinion as to whether the disorder is causally related to the Veteran's service in 2003 in the Persian Gulf. (c) For the "diagnoses" of neuritis and "plantar fasciitis" given in an August 2011 podiatry note, do you find such diagnoses supported by the objective evidence during that podiatry visit and in the other medical of record? Please explain why or why not. (d) If neuritis and/or plantar fasciitis are valid diagnoses resulting in his claimed neurological symptoms of the hands and/or feet, please opine whether such diagnoses are at least as likely as not (50 percent or greater probability) related to the Veteran's military service, to include the complaints of pain and numbness of the upper extremities during active duty in October 2003. (e) The examiner should explain the medical basis for the conclusions reached. 3. After the development requested above has been completed to the extent possible, the claim should again be adjudicated, to include consideration of the claim under the criteria for establishing service connection for an undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. The pertinent legal provisions (i.e. 38 C.F.R. § 3.317) should be included in the supplemental statement of the case. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. Thereafter, the case should be returned to the Board if in order. 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). _________________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs