Citation Nr: 1413992 Decision Date: 04/01/14 Archive Date: 04/11/14 DOCKET NO. 10-48 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for right accessory nerve injury and hand numbness, including as secondary to a service-connected right shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty as a midshipman with the Naval Academy from June 1995 to May 1999 and served on active duty with the Navy from May 1999 to June 2009. See 38 C.F.R. § 3.6(b)(4)(2013). This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina as part of the Benefits Delivery at Discharge (BDD) program. The Veteran's initial claim was for service connection for right accessory nerve injury and hand numbness. The medical evidence of record indicates that the Veteran's right hand condition may be related to his service-connected right shoulder disability. The scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Brokowski v. Shinseki, 23 Vet. App. 79 (2009). The Board has recharacterized the claim as entitlement to service connection for right accessory nerve injury and hand numbness, including as secondary to a service-connected right shoulder disability, as styled on the title page. In January 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Virtual VA paperless claims file system. The appellant submitted additional evidence in January 2014, consisting of a new statement in support of his claim. There were also service treatment records (STRs) attached to the Veteran's new statement, but these were already of record. There was waiver of RO jurisdiction submitted by the appellant during the January 2014 Board hearing. See 38 C.F.R. § 20.1304(c). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran is seeking service connection for right accessory nerve injury and hand numbness, including as secondary to a service-connected right shoulder disability. A remand is necessary for further evidentiary development. The medical records show that in September 1996, the Veteran underwent right shoulder surgery due to sub-acromial decompression. In October 1996, the Veteran complained of his right hand feeling colder. An April 1997 treatment note documents the Veteran's right hand becoming numb and that he is unable to hold his fingers together. In August 1997, an electromyogram (EMG) was performed, which showed evidence of degeneration of the right trapezoid muscle. The assessment was an accessory nerve injury. An October 1997 treatment record notes that the Veteran has numbness of the entire hand with an assessment of accessory nerve injury. In December 1997, the Veteran complained of intermittent numbness of his right hand, which is worse with activity. The assessment was an accessory nerve injury. In January 1998, a second EMG was performed, with normal results. In a February 2008 Report of Medical History, the Veteran stated that he had a painful shoulder, elbow or wrist and numbness or tingling, specifically that his right hand tingles with exercise. The Veteran was provided a pre-discharge general medical examination in April 2009. He complained of tingling and numbness of his right hand with sustained activity. The Veteran stated that the nerve may have been damaged during his September 1996 shoulder surgery while at the Naval Academy. Upon physical examination, the Veteran's extremities were found to be normal, with normal peripheral pulses. Neurological examination showed upper extremities with normal motor and sensory function. The peripheral nerve examination was also normal. The examiner stated there was no pathology upon which to render a diagnosis. There was no discussion of the Veteran's various in-service complaints of right hand numbness or the possible relationship between his right hand condition, his in-service right shoulder surgery and his service-connected right shoulder disability. During the Veteran's January 2014 Board hearing, he complained of right hand numbness beginning after his September 1996 right shoulder surgery. He currently has almost daily flare-ups that result in his right hand feeling numb, cold and weak. Service connection may be granted for a disability that is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. A remand is necessary to develop the record on the secondary basis, to include obtaining a medical opinion and providing the Veteran appropriate notice. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). On remand, records of any VA or private treatment of the Veteran's right accessory nerve injury and hand numbness or right should disability should be obtained. See 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran appropriate notice regarding his claim of service connection for right accessory nerve injury and hand numbness as secondary to his service-connected right shoulder disability. 2. Obtain the names and addresses of all medical care providers, not previously identified, who have treated the Veteran for right accessory nerve injury and hand numbness and right shoulder issues since September 1996. After securing the necessary release(s), obtain these records. 3. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the nature, extent and etiology of his right accessory nerve injury and hand numbness. The claims file and all pertinent records, to include a copy of this Remand, must be made available to the examiner. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. Based on the examination and review of the record, the examiner is requested to provide the following information: (a) Does the Veteran have a currently diagnosed right hand condition(s)? (b) Is it at least as likely as not (i.e. probability of 50 percent or greater) that any currently diagnosed right hand condition(s) is related to the Veteran's active military service, including his September 1996 right shoulder surgery? (c) If the answer to (b) is "no," is it at least as likely as not (i.e. probability of 50 percent or greater) that any currently diagnosed right hand condition(s) was caused by the Veteran's service-connected right shoulder disability? (d) If the answer to (c) is "no," is it at least as likely as not (i.e. probability of 50 percent or greater) that any currently diagnosed right hand condition(s) was aggravated by the Veteran's service-connected right shoulder disability? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of severity of the right hand condition(s) (i.e., a baseline) before the onset of the aggravation. The VA examiner is requested to provide a thorough rationale for all opinions provided. In providing these opinions, the examiner should address the significance of the Veteran's September 1996 right shoulder surgery, the Veteran's chronic complaints of right hand numbness from October 1996 to the present, the numerous findings of an accessory nerve injury in the record, the Veteran's statements that his right hand numbness began after his in-service right shoulder surgery, and the Veteran's service-connection for his right shoulder condition in April 2009. Note: if the examiner concludes that there is insufficient information to provide an etiology opinion without resorting to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (please identify) or because the limits of medical knowledge had been exhausted regarding the etiology of the claimed condition. 4. After completion of the above, readjudicate the issue on appeal. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ M. E. LARKIN 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).