Citation Nr: 1342894 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-26 215 ) 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 radiculopathy of the right lower extremity as secondary to service-connected paravertebral myositis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active military service from April 1959 to April 1961. This matter comes to the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied the claim currently on appeal. On his June 2010 Form 9, the Veteran requested a Board hearing. In correspondence received in August 2010, the Veteran requested to have his appeal decided based on the evidence of record without a hearing. Therefore, his Board hearing request has been withdrawn. 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 Veteran claims that he has right leg radiculopathy that is secondary to his service-connected back disability. While March 2008 and 2009 VA examiners reported that March 2008 electromyography (EMG) studies revealed no evidence of lumbar radiculopathy, in February 2009 correspondence, Dr. R.A.V. reported that the Veteran had, "right leg r[a]diculopathy with neuropathy to such leg." Additionally, more current treatment records from San Juan VA Medical Center (VAMC) included a December 2010 record that noted the Veteran's complaints of right left weakness along with objective evidence of mild weakness at right ankle dorsiflexion and extensor hallucis longus. The treating physician noted that the Veteran had a history of chronic low back pain and an old lumbar MRI showed moderate-to-severe central canal and moderate bilateral neural foramina narrowing at L4-5 in which the Veteran's symptoms could be related to lumbar radiculopathy. January 2011 nerve conduction studies (NCS) revealed that there were positive sharp waves identified at tibialis anterior. While the VA treating physician reported that this finding, by itself, was not diagnostic of radiculopathy, he did not elaborate on any further evidence needed to obtain a diagnosis of radiculopathy. Rather, he indicated that this finding could be suggestive of muscle membrane irritability. There was also decreased amplitude at the sural nerve, which suggested mild axonal neuropathy. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2013); see 38 C.F.R. § 19.9 (2013). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Based on the findings of the more recent VA treatment records, the Veteran should be afforded a detailed neurology examination to determine whether he has any neurological disability secondary to his lumbar spine disability. In December 2010, the VA treating physician indicated that he would request a lumbar spine X-ray, among other things. However, if a lumbar spine X-ray was, in fact, requested and performed, then such results have yet to be associated with the claims file. Furthermore, the record reflects that the Veteran receives ongoing treatment at the San Juan VAMC. Records of any VA treatment the Veteran may have received for the disabilities at issue since then are constructively of record, may contain pertinent information, and must be secured. Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Dunn v. West, 11 Vet. App. 462, 466 (1998). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all records of the Veteran's treatment for any neurological disorder of the right lower extremity since December 2011 from the San Juan VAMC. If any such records are unavailable, the Veteran should be notified of the identity of any records that are unavailable, the efforts VA has undertaken to obtain the records, and any further action that may be taken concerning his claims, and he should be notified that he may submit the records himself. All such notification must be documented in the claims file. If the VHA medical records are electronically available in CAPRI, follow current procedures to review and identify VHA medical records pertinent to the disability claims electronically available in CAPRI. Upload to the Virtual VA eFolder the VHA medical records electronically available in CAPRI. 2. After the completion of #1 above, schedule the Veteran for a VA neurological examination to determine the etiology of any current neurological disability of the right lower extremity. All indicated tests and studies should be conducted. The claims file, including this remand and any relevant records in Virtual VA must be made available to and be reviewed by the examiner; consideration of such should be reflected in the completed examination report or in an addendum. a) The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any identified right leg neurological disability was either caused (in whole or in part) or aggravated by his service-connected lumbar paravertebral myositis; discogenic disease L4-L5, L5-S1; degenerative osteoarthritis, or other service-connected disabilities including gastroesophageal reflux disease associated with the lumbar spine disability and bilateral hearing loss. The examiner should address the Veteran's complaints of complaints of right left weakness with objective evidence of mild weakness at right ankle dorsiflexion and extensor hallucis longus; January 2011 NCS, which revealed positive sharp waves identified at tibialis anterior; and suggestive findings of muscle membrane irritability and mild axonal neuropathy and opine as to whether or not such findings were either caused or aggravated by the Veteran's service connected disabilities, including the lumbar spine. The examiner must provide reasons for each 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 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 the Veteran's reports, the examiner must provide a reason for doing so. 3. The RO/AMC should review the examination report to ensure that they contain the information and opinions requested in this remand and are otherwise complete. 4. If any benefit sought on appeal is not granted, the RO/AMC should issue a supplemental statement of the case. The case should be returned to the Board, if otherwise in order. 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. 2013). _________________________________________________ J.A. MARKEY 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).