Citation Nr: 1339848 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 09-31 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased disability rating in excess of 10 percent for service-connected right (major) wrist disability (also claimed as nerve damage). 2. Entitlement to service connection for syringomyelia with residuals, to include as secondary to the service-connected right wrist disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active military service from September 1990 to January 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2007 and December 2008 rating actions of the Department of Veterans Affairs (VA) Regional Office (RO) located in Los Angeles, California. By the December 2007 rating action, the RO assigned a 10 percent disability rating to the service-connected right wrist disability, effective March 7, 2002--the date of a VA treatment report showing an increase in severity of this disability. The Veteran appealed the 10 percent rating to the Board. This appeal also stems from a December 2008 rating action. By that rating action, the RO denied service connection for syringomyelia with residuals, to include as secondary to the service-connected right (major) wrist disability. The Veteran also appealed this rating action to the Board. In July 2013, the Veteran testified before the undersigned Acting Veterans Law Judge at the above-cited RO. A copy of the hearing transcript has been associated with the claims file. During the hearing, the Veteran provided testimony on the increased rating issue. (See July 2013 Transcript (T.)). As the Veteran did not provide testimony on the service connection issue, her representative sought clarification as to whether or not she wished to withdraw it in November 2013. In a November 2013 written argument to VA, the Veteran's representative indicated that the Veteran did not intend to withdraw the service connection issue and in lieu of another hearing before a Veterans Law Judge on this issue, she had authorized her representative to provide a written brief on her behalf. (See November 2013 written argument to the Board, page (pg. 2)). Thus, the Board will proceed with its appellate review of the increased evaluation and service connection issues as noted on the title page. 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 The Board finds that additional substantive development on the increased evaluation and service connection claims is warranted prior to further appellate review. Concerning the Veteran's right wrist disability, she maintains that it is more severely disabling that that reflected by the currently assigned 10 percent disability rating. The last VA examination of the right wrist disability was in April 2012. (See April 2012 VA orthopedic examination report). During the July 2013 hearing before the undersigned, the Veteran testified that her service-connected right wrist disability had increased in severity since this examination due to symptoms, such as increased pain and spasms of the right wrist. She also testified that her right wrist disability had made her job as a mail processing clerk increasingly difficult. (T. at pg. 7). Finally, the Veteran has also maintained, in part, that her service-connected syringomyelia is secondary to her service-connected right wrist disability. (See Veteran's handwritten notation on an October 2008 Veterans Claims Assistance Act (VCAA) response form and VA Form 21-4138, Statement in Support of Claim, accepted as the Veteran's Notice of Disagreement, received by the RO in April 2009)). In April 2013, VA examined the Veteran to determine the etiology of her syringomyelia. At the close of the evaluation, the VA examiner provided an opinion that it was not at least as likely as not that the Veteran's syringomyelia had been aggravated beyond its natural progression by her scoliosis (nonservice-connected disorder). The VA examiner then stated that syringomyelia could be aggravated by local trauma such as whiplash from a motor vehicle accident, meningitis, hemorrhage, or tumor adjacent to the syrinx. However, there was no evidence that scoliosis negatively affected symptoms of syringomyelia, as documented in various medical journals and websites. (See April 2013 VA examination report). As noted by the Veteran's representative in his November 2013 written argument to VA, the April 2013 VA physician did not provide an opinion as to the secondary service connection component of the Veteran's claim for service connection for syringomyelia. Thus, on examination of the right wrist, the examiner will be asked to provide an opinion as to whether the service-connected right wrist disability caused or aggravated (made permanently worse) the Veteran's syringomyelia. The examiner should also opine as to whether the Veteran's syringomyelia had its onset or is otherwise directly related to her period of active service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA joints examination by an appropriate specialist to determine the current severity of her service-connected right wrist disorder and etiology of her syringomyelia, to include an opinion as to whether the service-connected right wrist disorder caused or aggravated (made permanently worse) any syringomyelia. The following considerations will govern the examination: a. The claims file, including all medical records obtained and a copy of this remand, will be reviewed by the examiner. The examiner must acknowledge receipt and review of the claims file, the medical records obtained and a copy of this remand. b. As to the service-connected right wrist disability, the examiner must conduct range of motion testing and comment on the presence and extent of any instability, ankylosis, painful motion, functional loss of the right wrist due to pain, weakness, excess fatigability, and additional disability during flare-ups. The examiner must specifically comment on the presence of any moderate or severe incomplete paralysis of the Veteran's ulnar nerve; or complete paralysis of the ulnar nerve with "griffin claw" deformity due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb flexion of wrist weakened and, if present, describe it as slight, moderate or severe. The examiner must also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's syringomyelia had its onset or is otherwise directly related to active service, or whether her service-connected right (major) wrist disability caused or permanently worsened the Veteran's syringomyelia. If such aggravation is found to exist, the examiner should provide an assessment, if possible, of the baseline level of impairment of the Veteran's syringomyelia prior to aggravation, and then provide a quantification, if possible, of the level of additional impairment above and beyond this baseline level imposed by the service-connected right (major) wrist disability. If it is not possible to provide such an assessment, the examiner must provide the reasons for his or her finding. A complete rationale must be provided for all opinions expressed. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. To help avoid future remand, the RO/AMC must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, undertake corrective action before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After the above development is completed and any other development that may be warranted, the RO/AMC should readjudicate the claims of entitlement to an increased disability rating in excess of 10 percent for service-connected right wrist disability and entitlement to service connection for syringomyelia with residuals, to include as secondary to the service-connected right wrist disability. If any of these benefits sought is not granted, the Veteran and her representative shall be provided with a supplemental statement of the case (SSOC) and afforded the requisite time period to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2013). _________________________________________________ Michael J. Skaltsounis 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) (2013).