Citation Nr: 1415635 Decision Date: 04/09/14 Archive Date: 04/15/14 DOCKET NO. 08-26 104A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a disability manifested by left arm pain (also claimed as radiculopathy), to include as a result of undiagnosed illness. 2. Entitlement to service connection for sciatica (claimed as pain in the legs and right hip). 3. Entitlement to service connection for a sleep disorder, to include sleep apnea and primary insomnia. 4. Entitlement to a rating in excess of 30 percent for cervical syrinx at C5-6, status post-fusion at C6-7, with bulging discs at C3-4 and C4-5. 5. Entitlement to a rating in excess of 10 percent for residuals of a stress fracture, right foot, post-resection, sesamoid, at the right medical metatarsophalangeal with residual superficial cutaneous paresthesia. 6. Entitlement to a rating in excess of 10 percent for degenerative changes, right knee, with popliteal cyst. 7. Entitlement to a rating in excess of 10 percent for multiple joint pain, to include the hands, fingers, wrists, elbows, left shoulder, hips, feet, and toes (claimed as fibromyalgia). 8. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD) with Nissan fundoplication and irritable bowel syndrome (IBS). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran had active service from May 1982 to December 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November and December 2006 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). In January 2010 the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the record. In a September 2010 decision, the Board denied the claims of service connection for shortness of breath (also claimed as a cough and choking sensitivity), and service connection for chest pain, both disabilities to include as a result of undiagnosed illness. The Board then remanded the remaining claims to the RO via the Appeals Management Center (AMC), for additional development. In November and December 2013, additional evidence and argument was received at the Board. The Veteran did not waive initial review of this evidence by the AOJ (agency of original jurisdiction). See 38 C.F.R. § 20.1304(c) (2013). However, as the Board is remanding the entirety of the claims to the AOJ via the AMC, the AMC will have the opportunity to review the additional evidence that has been submitted by the Veteran or on his behalf. The claims of service connection for left arm pain, sciatica, a sleep disorder, as well as increased ratings for a cervical syrinx at C5-6; residuals of a stress fracture, right foot; degenerative changes, right knee; multiple joint pain (claimed as fibromyalgia); and GERD; are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND Although the Board sincerely regrets further delay in this case, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. This case was remanded by the Board in September 2010 to obtain additional information, including medical examinations and opinions. The Veteran had testified at a January 2010 Travel Board hearing concerning the onset of his leg pain claimed as sciatica. He had also given lay testimony that he had a sleep disorder dating to the 1990's during service, and sleep apnea. The Veteran also testified that clinicians were not able to conclusively relate his left arm pain to his service connected cervical spine disorder, but he reported his arm pain dated back to his military service. It was noted that a VA medical examination in April 2009 had not specifically addressed service connection for a left arm condition on a secondary basis. 38 C.F.R. § 3.310 (2013). It was determined that under the VA's "duty to assist" medical examinations and opinions were necessary to determine if the claimed disabilities were related to the Veteran's military service. Among the requested development was a VA examination and opinion to determine the nature and etiology of any diagnosed disorder of the sciatic nerve or left upper extremity to include whether any diagnosed disorder(s) is/are secondary to any currently-service-connected disability, to include a cervical spine disability, lumbosacral spine disability and/or multiple joint pain due to undiagnosed illness, or whether any current diagnosis is directly related to his period of active service. A medical examination was also requested to determine whether any currently diagnosed sleep disorder, to include sleep apnea, is related to his period of active service. Subsequent to the September 2010 Board remand, a VA medical examination was performed in November 2010. However, after a thorough review of the instructions set forth by the Board, the Board finds that all of the actions requested have not been substantially completed. It is noted that in the November 2010 VA examination, the examiner opined that despite subjective symptoms, there were no findings to support a diagnosis of sciatica or a left upper extremity disorder. It is important to note though that the examiner did not determine whether the Veteran's sciatica and left upper extremity symptoms, including pain and paresthesia were due to an undiagnosed illness as requested, so the Board may address whether there was qualifying 38 C.F.R. § 3.317 undiagnosed illness. So those subjective symptoms identified by the Veteran should be considered for purposes of an undiagnosed illness pertaining to the claimed sciatica and the left upper extremity conditions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (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). The Board notes further, that more recent private medical evidence submitted by the Veteran indicates that the Veteran now has a diagnosis of bilateral carpal tunnel syndrome and he has submitted a medical statement linking such disorder to the Veteran's military service. The relationship, if any, to the Veteran's claimed disabilities must be clarified. The November 2010 VA examination also addressed the Veteran's claimed sleep disorder, and it included sleep apnea as a diagnosis. However, the examiner also indicated that sleep apnea was not treated in service, and that it was less likely than not caused by or related to or worsened beyond natural progression by military service. However, the record shows that the Veteran has provided lay testimony indicating that he has symptoms of a sleep disorder that began during his military service. This is from the Veteran's personal knowledge and does not require medical expertise. It has been determined that an examiner may not ignore lay evidence and base an opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The VA clinician's opinion should also address the Veteran's lay testimony regarding the claimed service onset of his sleep disorder. Regarding the Veteran's remaining claims for increased evaluations, the VA duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). Where the evidence of record does not reflect the current state of disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The record shows that the last VA compensation examination of the Veteran's several claimed service-connected disabilities was in November 2010, more than 3 years ago. In the interim, the Veteran has submitted private medical records dated through 2013 indicating treatment for carpal tunnel syndrome, arthralgia, joint pain, and GERD, thus indicating that the 2010 examinations may not be an accurate representation of the current severity of the Veteran's service-connected disabilities. Another VA compensation examination therefore is needed to reassess the severity of his disabilities. See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the United States Court of Appeals for Veterans Claims determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of Veteran's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA examiner in November 2010 who performed an examination and rendered an opinion regarding the claimed sciatic nerve (pain in the legs and right hip) or left upper extremity problems. The examiner should render an opinion specifically as to whether it is at least as likely as not that claimed sciatic and/or left upper extremity symptomatology is the result of an undiagnosed illness or medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome or fibromyalgia) originating during or as a result of his period of military service. The examiner should also review the 2013 private medical records documenting treatment for carpal tunnel syndrome and discuss the significance, if any, to the etiology of the Veteran's complaints of left arm pain. In addition, the same examiner should also render an opinion as to whether it is at least as likely as not that any currently diagnosed sleep disorder, to include sleep apnea, is related to the Veteran's period of active military service. As well, it is imperative the examiner reviews the claims file and consider the Veteran's lay statements. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If, for whatever reason, it is not possible or feasible to have this same examiner provide this further comment, then have someone else equally qualified provide this necessary additional comment. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion. If, after consideration of all pertinent facts, additional test results, or procurable data, the examiner cannot provide an opinion without resorting to mere speculation, then this must be expressly indicated and, more importantly, the examiner must explain why the requested opinion is not possible or feasible. Merely saying he/she cannot comment will not suffice. 2. The RO/AMC should obtain VA examinations in the appropriate specialties to determine the nature and extent of the Veteran's service-connected cervical syrinx at C5-6; residuals of a stress fracture, right foot; degenerative changes, right knee; and multiple joint pain (claimed as fibromyalgia) disorders. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner(s) should address the following: (a) The examiner should express an opinion as to the severity of any orthopedic manifestations of each disability (including decreased range of motion). The examiner should conduct all necessary diagnostic testing and evaluation needed to make these determinations. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion, and when indicating range of motion should also indicate at what point (in degrees), if any, motion becomes painful. (b) The examiner should describe any associated neurological impairment for each service-connected disorder. (c) With respect to any neurological impairment, the examiner should also identify all neurological symptoms, including reflex changes, characteristic pain, and muscle spasm, and express an opinion as to their severity. Any peripheral nerve or nerves involved, resulting from any service-connected disorder should be identified and described. Any functional impairment of the extremities due to any service-connected disorder should be identified. (d) As to the service-connected multiple joint pain due to undiagnosed illness (rated as fibromyalgia), the examiner should indicate whether the disorder is manifested by symptoms that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but are present more than one-third of the time, or symptoms that are constant, or nearly so, and refractory to therapy. (e) The examiner must set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record. 3. The RO/AMC should obtain a VA examination in the appropriate specialty to determine the nature and extent of his service-connected GERD with IBS. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the following: (a) The examiner should express an opinion as to the severity of any current gastrointestinal disorder, to include GERD and IBS. The examiner should address the symptomatology of each diagnosed disorder, and indicate which disorder and related symptomatology represent the predominant disability picture with respect to service-connected gastrointestinal disabilities. (b) The examiner must set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record. 4. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If any claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has 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. 2013). _________________________________________________ S. L. Kennedy 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).