Citation Nr: 1339374 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 10-25 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased evaluation for posterior interosseous nerve compression of the right forearm, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from August 1990 to January 1998. The appeal comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, denying an increased evaluation for posterior interosseous nerve compression of the right forearm. The Veteran had requested a hearing before an RO hearing officer, and she was afforded that opportunity in January 2011 but failed to appear for the hearing. She did testify at a hearing conducted before the undersigned in July 2013, and a transcript of that hearing is contained within the Veteran's Virtual VA file. The issues of entitlement to service connection for a left arm disability, and entitlement to service connection for carpal tunnel syndrome as secondary to posterior interosseous nerve compression of the right forearm, have been raised by the record. Specifically, the Veteran by an August 2011 submission, a telephonic contact in September 2011, and a further submission in December 2011, raised an informal claim for service connection for a disability of the left arm. By a June 2013 letter she raised an informal claim for service connection for carpal tunnel syndrome as secondary to posterior interosseous nerve compression of the right forearm. These issues have not been addressed by the Agency of Original Jurisdiction (AOJ). Absent AOJ initial adjudication and appeal, the Board does not have jurisdiction over them. 38 C.F.R. §§ 20.101, 20.200 (2013). Accordingly, they are 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 In her VA Form 9 submitted in June 2010, the Veteran expressed her belief that her service-connected right arm disability should be rated as two separate disorders. At her July 2013 hearing before the undersigned, the Veteran stated that her right arm disability first manifested as immobility at the right elbow, but that with physical therapy she had movement, though movement continued to be painful. Also at that hearing, she reported that she had progression of numbness, which had been only in her fingertips but now encompassed the entire hand. She added that she had loss of grip, problems with repetitive actions, pain, and weakness in the right arm. At the July 2013 hearing, the Veteran noted that her service-connected disability had last been examined in March 2010. That most recent examination is of record. Thus, the Veteran has not been examined for her posterior interosseous nerve compression of the right forearm for compensation purposes for over three and a half years, and her statements implicate the possibility of increased severity since that time. Remand is in order to ascertain the current state of her claimed disability, including to ascertain whether separate disorders are associated with the service-connected condition, including both orthopedic and neurological impairment, and whether the condition has increased in severity since the most recent examination. Based on these circumstances, an additional VA examination is necessary to assess the posterior interosseous nerve compression of the right forearm. 38 C.F.R. §§ 3.326 , 3.327 (2013). Additionally, the Veteran reported last receiving treatment for the condition in the summer of 2012, whereas records of treatment associated with the claims file are no more recent that November 2011. Hence, records of more recent treatment should be obtained prior to Board adjudication. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford her the opportunity to identify or submit any additional pertinent evidence in support of her claim. 2. Based on her response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Any additional VA or private treatment records must be obtained and associated with the claims file, with the Veteran's assistance, as appropriate. This should include any records not yet obtained of physical therapy or surgical intervention associated with the Veteran's posterior interosseous nerve compression of the right forearm. Records from both the Greenville, South Carolina, VA outpatient clinic and the Columbia, South Carolina, VA Medical Center should be sought. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. If the RO is unable to secure all of the identified pertinent records, the RO must notify the Veteran and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that she is ultimately responsible for providing information. The Veteran and her representative must then be given an opportunity to respond. 3. Thereafter, the Veteran must be afforded an appropriate VA examination or examinations to assess the current nature and severity of her service-connected disability presently characterized as posterior interosseous nerve compression of the right forearm. The claims file and all electronic records, to include on Virtual VA, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner should address the reviewed records, including prior VA examination reports in January 2009, September 2009, and March 2010 addressing the posterior interosseous nerve compression of the right forearm. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner must report all associated complaints and findings attributable to the Veteran's service-connected posterior interosseous nerve compression of the right forearm. The examiner should specifically address whether the service-connected condition of the right arm is only manifested by neurological disability, or whether orthopedic disability is also implicated as part of the service-connected condition. To the extent possible, the examiner should endeavor to differentiate limitations of functioning attributable, separately, to the service-connected condition characterized as posterior interosseous nerve compression of the right forearm, from any other conditions affecting the symptoms or functioning of the right upper extremity but which are not found to be part of the service-connected condition. Addressing these questions may require careful review of the service treatment records as well as interview of the Veteran to obtain a history of her disability. The nature and extent of the service-connected condition should be addressed in detail, including any neurological and orthopedic (if any) manifestations. The examiner must conduct full range of motion studies for any involved joints, and should address any associated impairment, including based on pain-related factors. The examiner should specifically consider any changes to the condition since the most recent VA examination in March 2010 evaluating the posterior interosseous nerve compression of the right forearm. Then, after reviewing the Veteran's complaints and medical history, separately for any involved disability associated with the posterior interosseous nerve compression of the right forearm, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse. 4. The RO must notify the Veteran that it is her responsibility to report for any examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to her last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 5. After completing the above actions, and any other development as may be indicated, the claim on appeal must be readjudicated. If the issue on appeal remains denied to any extent, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must 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). _________________________________________________ L. M. BARNARD 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).