Citation Nr: 1329523 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 09-13 494 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for carpal tunnel syndrome. 3. Entitlement to service connection for numbness of the left leg, to include as secondary to degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active service from April 1981 to March 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the RO. In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. The Veteran was scheduled for a Board hearing at the RO in August 2013. The Veteran failed to report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND With regard to the Veteran's claim for service connection for hepatitis C, the Veteran asserts that he contracted hepatitis C in service while he was stationed in Hong Kong. Specifically, he asserts that he contracted hepatitis C after getting a tattoo. Reportedly, after he got his tattoo, the tattoo parlors were deemed off limits to the service personnel because of a hepatitis C outbreak. The Board acknowledges that the Veteran is shown to have had tattoos on entrance into service. However, given the discrepancy on number of tattoos listed on separation as compared to number listed at entrance, it is possible that the Veteran got additional tattoo(s) while on active duty. To date, the Veteran has not been afforded a VA examination that addresses the etiology of his claimed hepatitis C. Under these circumstances, the Board finds examination is warranted as to the Veteran's claim for entitlement to service connection for hepatitis C. See McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006); Hyder v. Derwinski, 1 Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). With regard to the Veteran's claim for service connection for carpal tunnel syndrome, he was afforded a VA peripheral nerves examination in May 2011. The examiner concluded, in pertinent part, that "the findings in both median and both ulnar nerves are now normal and there is no recurrence of carpal tunnel syndrome on either side." The Board finds this examination inadequate. To the extent that the examiner finds that there is no current disability manifested by carpal tunnel syndrome, this conclusion is deficient. The Board reiterates service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Given the inadequacy of the VA examination as noted above, remand is warranted to obtain a more thorough opinion. With regard to the Veteran's claim for service connection for numbness of the left leg, the Veteran asserts that he has a current neurological disability manifested by left leg numbness due to injury sustained in service, namely the electrocution injury. A February 1984 service treatment record reflects that the Veteran had questionable black [soot] on his left foot, possible second exit; however, there was no injury/burn. Subsequent to service, the Veteran has complained of and received treatment for left leg numbness. The May 2011 VA peripheral nerves examination reflects a diagnosis of idiopathic polyneuropathy causing absent ankle jerks and glove and stocking hypesthesia in all four extremities considered secondary to heavy alcohol ingestion. However, the Board notes that the examiner specifically noted that nerve conduction velocities were performed in the upper extremities only and not the lower extremities. Thus, without all appropriate testing, it is unclear how such diagnosis was reached. Further, the examiner fails to address the Veteran's lay assertions regarding the etiology of his left leg numbness. 38 U.S.C.A. § 1154(a) compels VA to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. The Veteran asserts that he was electrocuted during service and sustained left leg numbness related thereto. Service treatment records confirm that the Veteran was in fact shocked and there was a questionable second exit of the current through his left foot. Thus, in rendering opinion as to etiology, the examiner must address the Veteran's competent lay assertions of in-service shock and resultant left leg disorder. Again, where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Given the inadequacy of the VA examination as noted above, the Board finds that additional opinion is necessary to clarify this issue. Additionally, the Board observes that the record indicates that the Veteran experiences possible radicular symptoms in his lower extremities as a result of his service-connected degenerative disc disease of the lumbar spine. A February 2009 VA treatment record reflects an assessment of low back pain with questionable radicular symptoms. An August 2009 VA treatment record reflects the Veteran's complaint of radiation of pain from back to his lower extremities. Under 38 C.F.R. § 3.310(a) (2012), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Thus, in rendering opinion as to etiology of the left leg numbness, the examiner must also address whether such disorder is due to or the result of the service- connected degenerative disc disease of the lumbar spine. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate his complaints of hepatitis C. The claims file should be made available to the examiner for review. All indicated tests and studies should be performed and clinical findings should be reported in detail. A clinical history should be obtained, to include a discussion of the Veteran's documented medical history and assertions. After a thorough review of the evidence, the examiner should provide an opinion with supporting rationale as to whether it is at least as likely as not (50 percent probability or better) that the Veteran contracted hepatitis C due to event or injury of service, to include getting tattoo(s) while in service. In providing the opinion above, the examiner should include discussion on the etiology of the cirrhosis of the liver and liver cancer (i.e., is the Veteran's liver cirrhosis or liver cancer a result of disease or injury of service related origin or are the diseases due to a cause unrelated to his period of service). The examination report must include complete rationale for all opinions and conclusions reached. 2. Schedule the Veteran for a VA examination to evaluate his complaints of carpal tunnel syndrome. The claims file should be made available to the examiner for review prior to examination. All indicated tests and studies should be performed and clinical findings should be reported in detail. A clinical history should be obtained. After a thorough review of the evidence, the examiner should provide an opinion with supporting rationale as to whether it is at least as likely as not (50 percent probability or better) that the Veteran has or, at any time since November 2007, had carpal tunnel syndrome due to injury sustained in service, namely electric shock. The examination report must include complete rationale for all opinions and conclusions reached. 3. Schedule the Veteran for a VA examination to evaluate his complaints of left leg numbness. The claims file should be made available to the examiner for review prior to examination. All indicated tests and studies should be performed and clinical findings should be reported in detail. A clinical history should be obtained. After a review of the evidence, the examiner should provide an opinion with supporting rationale as to following questions: a) Is at least as likely as not (50 percent probability or better) that the Veteran has any current disorder manifested by left leg numbness due to injury sustained in service, namely electric shock? b) Is it at least as likely as not (50 percent chance or better) that any current disorder manifested by left leg numbness is related (cause or aggravation) to the service-connected degenerative disc disease of the lumbar spine? The examination report must include complete rationale for all opinions and conclusions reached. 4. Then, the RO should readjudicate the Veteran's claims for entitlement to service connection for carpal tunnel syndrome and left leg numbness. If the determinations remain unfavorable to him, he must be furnished with a Supplemental Statement of the Case. Then if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). 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). ______________________________________________ H. N. SCHWARTZ 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).