Citation Nr: 1331502 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-06 930A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent prior to August 1, 2012, and 30 percent, effective August 1, 2012 for right wrist carpal tunnel syndrome. 2. Entitlement to an initial rating in excess of 10 percent prior to February 10, 2009 and in excess of 40 percent from February 2009 for lumbar spine degenerative disc disease. 3. Entitlement to service connection for a left shoulder condition, to include as secondary to the service-connected right shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served in the United States Air Force from February 1986 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In October 2009, the Veteran testified during a personal hearing at the RO. A transcript of that hearing is of record. This case was previously before the Board in June 2012, at which time the Board remanded the initial rating claims for right wrist carpal tunnel syndrome and a back disability for a neurological examination, to include nerve conduction studies. The Board also remanded the service connection claim for a left shoulder disability to include as secondary to a right shoulder disability for another VA examination addressing the etiology of the Veteran's diagnosed left shoulder bursitis. Thereafter the examinations were provided in August 2012. Unfortunately, for the reasons explained below, these claims must be remanded again. In a December 2012 rating decision the RO granted a higher initial rating of 30 percent for right wrist carpal tunnel syndrome, effective August 1, 2012. The Veteran has not indicated that he is satisfied with this rating. Thus, this claim is still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to an increased rating for a right shoulder disability has been raised by the record via a statement from the Veteran's representative in May 2012, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 After the August 2012 VA examination addressing the present severity of the Veteran's lumbar spine disability, the Veteran submitted a statement in May 2013 that the symptoms in his lower back had worsened a few days prior, to the point where he could not bend forward at all without excruciating pain. He submitted x-ray studies of the lumbar spine dated in May 2013 and waived RO jurisdiction over the new evidence. The Veteran's representative also submitted a statement in April 2013 that while the August 2012 VA examination report had found that the Veteran's right wrist carpal tunnel syndrome was moderate, most recently, the carpal tunnel syndrome had become so severe that the Veteran had indicated that he had to schedule himself time off from work because he had little to no grip strength in his right hand. Given that the Veteran and his representative have indicated worsening symptoms in the back and right wrist since the back disability and right wrist carpal tunnel syndrome were last evaluated in August 2012, a new examination is warranted to determine the present severity of the disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). Regarding the service connection claim for a left shoulder disability, the Veteran does not contend that the left shoulder disability was incurred in service but rather that it is secondary to his right shoulder disability. The provisions for secondary service connection claims allow for entitlement to service connection either based on causation from a service-connected disability or aggravation from a service-connected disability. See 38 C.F.R. § 3.310. The examiner who provided an opinion on the etiology of the Veteran's left shoulder disability in August 2012 found that the Veteran's left shoulder disability was not "secondary" to the Veteran's right shoulder condition. The rationale provided was that the left shoulder symptoms only started in 2008, which was almost 18 years after his right shoulder injury. The first problem with the examiner's opinion is that the Veteran actually had indicated on the August 2012 examination that he initially injured his right shoulder in 1990 but then reinjured his right shoulder in 2001 while lifting heavy bags in Korea. Therefore, the rationale that the left shoulder disability only manifested 18 years after the right shoulder disability is inaccurate; since it had been 7 years since the right shoulder reinjury. An opinion based on an inaccurate factual history has no probative value. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Second, the examiner arguably addressed the causation factor of secondary service connection claims, but did not address whether the Veteran's right shoulder disability aggravated the left shoulder disability in the opinion provided. Therefore, the case must be returned for a supplemental opinion addressing these matters. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any recent treatment he has received for his back, right wrist, and/ or left shoulder disabilities. If the Veteran complies, make arrangements to obtain any relevant records. If any efforts to obtain these records are unsuccessful notify the Veteran and indicate what further steps VA will make concerning his claim. 2. Thereafter, schedule the Veteran for an appropriate VA examination of his lumbar spine. The claims folder should be made available to and reviewed by the examiner. All necessary tests, including x-rays if indicated, should be performed. The examiner should identify and describe in detail all residuals attributable to the Veteran's service connected lumbar spine degenerative disc disease. The examiner should conduct range of motion testing of the lumbar spine, specifically noting whether - upon repetitive motion of the Veteran's low back - there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the lumbar spine is used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. Further, the examiner should identify any neurological pathology related to the service-connected lumbar spine degenerative disc disease, and fully describe the extent and severity of those symptoms, including a statement of which nerves are involved. Also, the examiner should state whether the Veteran's service connected lumbar spine degenerative disc disease causes intervertebral disc syndrome, and if so, the examiner should document the number of weeks, if any, during the past 12 months, that the Veteran has had "incapacitating episodes," defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Finally, the examiner should provide a statement as to the effects the lumbar spine disability has on the Veteran's present employment. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Schedule the Veteran for an appropriate VA examination of his right carpal tunnel syndrome. The claims folder should be made available to and reviewed by the examiner. All necessary tests, including nerve conduction studies if indicated, should be performed. The examiner should identify and describe in detail all impairment attributable to the Veteran's service-connected right carpal tunnel syndrome. The examiner also should do the following: (a) Identify all present neurological pathology related to the service-connected right wrist carpal tunnel syndrome, and fully describe the extent and severity of those symptoms, including whether the impairment is akin to mild, moderate, or severe incomplete paralysis of the median nerve; or whether there is complete paralysis of the median nerve with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. (b) Conduct range of motion testing of the right wrist, specifically noting whether - upon repetitive motion of the Veteran's right wrist - there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the right wrist is used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. (c) State whether there is any ankylosis in the right wrist, and if so, the degree of ankylosis including whether it is favorable or unfavorable. (d) Provide a statement as to the effects the right wrist disability has on the Veteran's present employment. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Return the Veteran's claims file to the examiner who performed the August 2012 VA examination and opinion addressing the Veteran's left shoulder disability. If this examiner is no longer available to complete an addendum to his opinion, the Veteran should be scheduled for a new VA examination by an orthopedist to ascertain the origins or etiology of any present left shoulder disability. The claims folders are to be provided to the examiner for review in conjunction with the examination and the examination report should reflect that the examiner reviewed the claims folders. After a review of the claims folders and an examination of the Veteran, the examiner should perform a thorough orthopedic evaluation and determine what disabilities the Veteran presently has in his left shoulder, if any. The examiner also should provide an opinion as to the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that any current left shoulder disorder was caused by his right shoulder disability. (b) Whether it is at least as likely as not (50 percent or greater probability) that any current left shoulder disability was aggravated (meaning chronically worsened) by his right shoulder disability. If so, please state, to the extent possible, the baseline level of severity of the left shoulder disability before the onset of aggravation. In providing this opinion, the examiner should consider any chronic complaints regarding the left shoulder since injury to the right shoulder in 1990 and again in 2001. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 5. After the requested examinations have been completed, the reports should be reviewed to ensure that they are in complete compliance with the directives of this remand. If any report is deficient in any manner, it should be returned to the examiner for corrective action. 6. Finally, readjudicate the claim on appeal with consideration of all relevant evidence added to the record since the last December 2012 Supplemental Statement of the Case. If any of the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. 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). _________________________________________________ KELLI A. KORDICH Acting 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).