Citation Nr: 1334513 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-18 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a right upper extremity disability. 2. Entitlement to service connection for a right lower extremity disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from December 1982 to October 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In October 2013, the Veteran was afforded a personal hearing before the undersigned. A transcript of the hearing is of record. 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 In December 2012, the Veteran stated that he was receiving disability benefits from the Social Security Administration (SSA). These records must be obtained on remand as the SSA's decision and the records upon which the agency based its determination are potentially relevant to VA's adjudication of his claims. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2010); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006). The Veteran claims that he has neurological problems associated with his service-connected cervical spine and lumbar spine disabilities. The Veteran testified during the October 2013 hearing that since the May 1986 automobile accident, which caused his service-connected cervical and lumbar spine disabilities, he felt numbness and tingling in his right upper and lower extremities. During the November 2003 and June 2004 VA examinations, neurological examination revealed decreased pinprick sensation on the right lower leg at L5-S1 and decreased hand strength on the right side. Radiation of pain on movement was present for both the cervical spine and thoracolumbar spine. A January 2008 VA examination also revealed radiation of pain on movement was present for both the cervical spine and thoracolumbar spine, but neurological examinations of the upper and lower extremities were normal. Private treatment records show that in September 2009, diagnostic work up revealed compression fractures at T6, 7, and 8 with progressive thoracic kyphosis, right radicular symptoms at L5 and S1, and cervical disk protrusions at C 4-5 and C5-6 with right radicular symptoms. The findings suggested a mild right median nerve compression or injury in the vicinity of the carpal tunnel based on the prolonged distal motor latency, but normal sensory studies make the diagnosis suggestive rather than definitive. The ulnar motor studies revealed slowing across the elbow, but motor sensory studies were otherwise normal. EMG testing for the lower extremities was needed. In a letter dated September 2009, the Veteran's private physician Dr. G.M. stated that a review of the Veteran's medical records reveals that his right lower extremity radicular findings were related to his L4-5 and L5-S1 injury. This opinion was based on a nerve conduction study and evidence of a prior compression fracture. The Veteran's nerve conduction studies of the right upper extremity were not clearly definitive; however, based on his history the physician found that his left upper extremity radiculopathy was related to his neck injury in service. The November 2009 VA examiner found no evidence of radiating pain related to the cervical or thoracolumbar spine. Neurological testing was normal for both the cervical spine and lumbar spine. The Veteran was diagnosed as having degenerative joint disease of the cervical spine and degenerative disc disease of the lumbosacral spine. As the evidence is unclear as to whether the Veteran has diagnosed neurological disabilities associated with his service-connected cervical spine and lumbar spine disabilities, another examination is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 U.S.C.A. § 1111; 38 C.F.R. § 3.159 (c)(4); 38 U.S.C.A. § 5103A(d). Accordingly, the case is REMANDED for the following action: 1. Request, directly from the SSA, complete copies of the determination on a claim for disability benefits, together with the medical records that served as the basis for such determination. All attempts to fulfill this development must be documented. If the search for these records is negative, that must be noted and the Veteran must be informed in writing. 2. After completion of the above development, schedule the Veteran for an examination with an orthopedic specialist to determine whether the Veteran suffers from neurological disabilities of the right upper extremity and the right lower extremity. The examination report must reflect review of all pertinent material of record. Based on examination results, including EMG testing and any other necessary neurological testing, the examiner is to offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current neurological disabilities of the right upper extremity and the right lower extremity are related to active service, including the in-service automobile accident. If not, the examiner must provide an opinion as to whether it is at least as likely as not that any current neurological disabilities of the right upper extremity and the right lower extremity are caused or aggravated by the Veteran's service-connected cervical disability and lumbar disability. The term "aggravation" means a permanent increase in severity of the neurological disabilities of the right upper extremity and the right lower extremity, that is, a worsening of the underlying condition not due to the natural progress of the disability, or a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Then, readjudicate the appeal. If the either benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ RONALD W. SCHOLZ 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).