Citation Nr: 1333586 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 05-02 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for neuropathy of the right hand, to include as secondary to service-connected second degree burn scar of the right arm. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from June 1977 to October 1977, with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Montgomery, Alabama. This matter was previously before the Board in August 2009 at which time it was remanded to obtain outstanding records. The available records were associated with the claims file. No additional records were found at the Atlanta VA Medical Center. Attempts to obtain these records are recorded in a formal finding dated February 2010. Therefore, the Board's directives have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2012 the Board denied the claim currently on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2013 Joint Motion for Partial Remand, the parties agreed that the Board's decision should be vacated. In January 2013, the Court vacated the Board's decision, and remanded the claim to the Board for action consistent with the terms of the February 2013 Joint Motion for Partial Remand. 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 Once the Secretary determines that an examination or opinion is required to decide a claim, VA is required to ensure that such an examination or opinion is adequate; if it is not "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2013); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); see also Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (inadequate medical evaluation frustrates judicial review). In a February 2013 Joint Motion for Partial Remand, the parties agreed that the VA examination provided in December 2008 was insufficient as it did not address the issue of aggravation when providing a nexus opinion. In this regard, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2013); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). However, as the Veteran's claim for service-connection was filed in 2003 and was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change. The Board is without discretion and, to ensure that a decision of the Board could survive judicial scrutiny, must obtain another medical opinion to address whether the Veteran's current neuropathy manifested by numbness of the right hand is secondary to the Veteran's service-connected second degree burn scar of the right arm. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (the Court vacated a decision of the Board where a VA examiner did not specifically opine as to whether a disability was aggravated by a service-connected disability). Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his asserted disability should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); 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. The RO/AMC shall obtain and associate with the claims file any outstanding VA treatment records for his asserted disability. If such records cannot be obtained or if no such records exist, the RO should document such findings, and the Veteran shall be notified accordingly. 2. After associating all pertinent outstanding records with the claims file, the RO/AMC shall schedule the Veteran for a VA examination so as to determine the etiology of his asserted right hand neuropathy. All tests and studies deemed necessary by the examiner shall be conducted. The claims file, including a copy of this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; and consideration of such shall be reflected in the completed examination report. The examiner should review the claims file and address the following questions: (a) Is it at least as likely as not that the Veteran's current right hand neuropathy had its onset in service, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not that the Veteran's current right hand neuropathy was caused (in whole or in part) by a service-connected disability, to specifically include the service-connected second degree burn scar of the right arm? (c) Is it at least as likely as not that the Veteran's current right hand neuropathy is aggravated (permanently worsened) by a service-connected disability, to specifically include the service-connected second degree burn scar of the right arm? The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects his reports of symptomatology, a reason for doing so must be provided. The absence of evidence of treatment for right hand neuropathy in the service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for all findings and conclusions. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 4. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. Claims remanded by the Board or the Court 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). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2013).