Citation Nr: 1335130 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-31 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a bilateral upper extremity disorder, to include radiculopathy or carpal tunnel syndrome, to include as due to service-connected chronic active cervical strain myositis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty in the Army from October 1974 to March 1975, with subsequent service in the Army National Guard, including active duty for training (ACDUTRA) from September 24, 1994 to September 25, 1994. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Board previously remanded this case for further development in December 2011. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims folder associated with the Veteran's claims. With the exception of additional VA treatment records dated to January 2012 and a brief submitted by the Veteran's representative in September 2013, a review of the documents in such folder reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In December 2011, the Board determined that the Veteran should be afforded a new VA examination which considers whether the Veteran's carpal tunnel syndrome, or another upper extremity disorder, is secondary to service-connected chronic active cervical strain myositis, or otherwise related to service. The Veteran was afforded a VA examination in December 2011. After reviewing the claims file and examining the Veteran, the examiner diagnosed carpal tunnel syndrome and opined that it was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The examiner rationalized that carpal tunnel syndrome was entrapment of the median nerve at the wrist level and, thus, it was anatomically impossible for cervical problems to cause a problem of the wrist. The examiner determined that the Veteran did not have radiculopathy of the upper extremities based on a private 2006 EMG performed by a private doctor, Esteban Linares, M.D., which found no evidence of cervical radiculopathy. However, the VA examiner did not provide an opinion as to whether the Veteran's bilateral carpal tunnel syndrome was aggravated by her service-connected cervical spine disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Moreover, the examiner predicated his finding that the Veteran did not suffer from cervical radiculopathy based on a 2006 private EMG, which was over five years old at that time and does not appear to be of record. The Board's prior remand also directed that all necessary diagnostic testing should be performed. It would seem that a current EMG would be considered necessary. Moreover, the examiner also failed to offer an opinion as to whether the Veteran's bilateral upper extremity disability was otherwise related to service as directed. The United States Court of Appeals for Veterans Claims (Court) has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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"). Moreover, once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). Thus, the Board finds that given the deficiencies described in the December 2011 VA examination, a remand is necessary to comply with the December 2011 Board remand to afford the Veteran an adequate VA examination to determine the etiology of any upper extremity disabilities. Moreover, a review of the record shows that the Veteran has reported receiving private treatment from Dr. Linares, who performed the September 2006 EMG and possibly a June 2005 EMG. However, the claims file does not include any records from this physician. As these records are pertinent to the issue on appeal, the RO should attempt to obtain them in accordance with 38 C.F.R. § 3.159. Moreover, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain outstanding, pertinent private records. Lastly, the Veteran receives continuing treatment at the San Juan VA Medical Center (VAMC), Ponce VA Outpatient Clinic, and Guayama Community-Based Outpatient Clinic. As noted above, the most recent VA treatment records associated with the Veteran's Virtual VA record are dated from January 2012. As VA medical records are constructively of record and must be obtained, the RO should obtain VA treatment records from January 2012 to the present. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's current and complete VA treatment records, including records from the San Juan VAMC, Ponce VA Outpatient Clinic, and Guayama Community-Based Outpatient Clinic, from January 2012 to the present. 2. Send to the Veteran and her representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private medical records, to include EMGS performed in 2005 and 2006, from Dr. Linares. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of an upper extremity disorder, to include carpal tunnel syndrome. It is imperative that the claims file be made available to the examiner for review in connection with the examination, to specifically include these remand instructions. All medically necessary tests, to include a current EMG, should be performed. The examiner should clearly delineate all disabilities of each upper extremity. After reviewing the claims file and examining the Veteran, the examiner should offer an opinion as to the following for each diagnosed upper extremity disability: a) Whether it is at least as likely as not (a 50% or higher degree of probability) that any diagnosed upper extremity disability is causally related to the Veteran's service, to include the motor vehicle accident that occurred in September 1994. b) Whether it is at least as likely as not (a 50% or higher degree of probability) that any diagnosed upper extremity disability is proximately due to, or caused by, the Veteran's service-connected cervical spine disability. c) Whether it is at least as likely as not (a 50% or higher degree of probability) that any diagnosed upper extremity disorder has been aggravated by the Veteran's service-connected cervical spine disability. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles. In proffering the opinions, the examiner should discuss the significance of the positive Phalen maneuver and a positive Tinel sign shown in an earlier examination. 4. After completing the above actions, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review 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). _________________________________________________ MARJORIE A. AUER 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).