Citation Nr: 1519029 Decision Date: 05/04/15 Archive Date: 05/13/15 DOCKET NO. 14-09 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for fine motor skill deficit, claimed as secondary to traumatic brain injury (TBI). 2. Entitlement to a compensable rating for visual impairment of reduced depth perception, secondary to TBI. (The issue of the propriety of the rating for TBI is addressed in a separate decision with a different docket number.) WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1998 to July 2002 and from September 2004 to July 2008. He served in Southwest Asia from October 2005 to October 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Fort Harrison, Montana, Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2014, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The Board notes for administrative convenience purposes that a March 2008 rating decision established service connection for TBI (memory, cognitive, vertigo, headache, fine motor skills, speech, anxiety, and posttraumatic stress disorder (PTSD)) with a prestabilization 100 percent rating. A September 2011 rating decision, established service connection for carpal tunnel syndrome (CTS) of the left hand/wrist and assigned a 10 percent rating. A January 2012 rating decision reduced the assigned 100 percent prestabilzation rating for TBI to 10 percent for the residuals of TBI, not otherwise classified, and assigned a 30 percent rating to headaches as a residual of TBI, a 30 percent rating for vertigo as a residual of TBI, and a 30 percent rating for PTSD. The Board finds the Veteran's June 27, 2014, request for waiver of the 30-day prior to the hearing date requirement for a motion for subpoena under 38 C.F.R. § 20.711(d) (2014) must be denied. The Veteran is shown to have been adequately notified of his scheduled hearing in May 2012, and there is no basis in applicable VA law for waiver of the 30-day requirement. The Board also notes that a subpoena may not be issued to compel the attendance of VA adjudicatory personnel. 38 C.F.R. § 20.711(a) (2014).. The issue of entitlement to a compensable rating for visual impairment secondary to TBI is REMANDED to the Agency of Original Jurisdiction. FINDING OF FACT The evidence demonstrates that a bilateral fine motor skill deficit disability developed as a result of the service-connected TBI. CONCLUSION OF LAW A bilateral fine motor skill deficit disability is proximately due to a service-connected disability. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in April 2012. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service medical records, VA treatment and examination reports, and statements and testimony in support of the claim. There is no evidence of any additional existing pertinent records. Further attempts to obtain additional evidence would be futile. When VA provides an examination or obtains an opinion, it must ensure that the examination or opinion is adequate. VA medical opinions obtained in relation to the issue being adjudicated are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2014). The available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claims would not cause any prejudice to the appellant. Service connection may be granted for a disability resulting from injury sustained or disease contracted in the line of duty or for aggravation of preexisting injury sustained or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2014). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310(a) (2014). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The pertinent evidence includes service medical records showing the Veteran sustained a TBI in September 2006 while serving in Iraq and that a September 2009 physical evaluation board found he had weakened grasp of the upper extremities and decreased fine motor dexterity/speed. Studies in May 2007 found electrophysiologic evidence of a mild left median sensory demyelinating mononeuropathy consistent with mild carpal tunnel syndrome. On VA examination by a nurse practitioner, B.M., in August 2011, the Veteran reported that he had trouble buttoning shirts with his left hand with fluctuating symptoms. He stated he used the ring and little finger to do a pincer grasp. He denied any treatment. The examiner noted the clinical evidence indicated full range of left wrist motion without objective evidence of pain. Tinel's and Phalen's signs were positive on the left. It was also noted that the Veteran's TBI with associated vertigo, headaches, fine motor skills, speech conditions, and post concussive syndrome was stable, and that clinical examination revealed associated symptoms of chronic headaches, mild speech impairment, vertigo, and fine motor skills that were more likely than not related to the TBI. The examiner noted that the fine motor skill impairment was most pronounced in the left upper extremity, and found the Veteran had normal motor activity most of the time with mildly slower activity at times due to apraxia to the left upper extremity. The examiner summarized the medical evidence of record and reiterated the opinion in a December 2011 VA addendum. A September 2011 VA medical opinion by a physician, G.H.N., found, based upon a review of the record, that the Veteran had two separate conditions involving CTS in the left hand and TBI. It was noted that his symptoms of a loss of dexterity in the left hand, numbness especially at night, and affected fingers and the electromyography (EMG) findings in May 2007 were consistent with a diagnosis of left CTS. It was noted that there were no medical reports of left hand symptoms until January 2007, and that TBI symptoms more often than not occurred at the time of the injury or shortly thereafter within minutes, hours, or sometimes days. On VA cranial nerves examination by a nurse practitioner, J.L., in June 2012, the Veteran and his spouse reported the onset of motor dysfunction to the left upper extremity onset in 2006 following exposure to an improvised explosive device (IED). It was reported that his dexterity was considerably diminished with difficulty tying his shoes, buttoning his shirt, starting the lawn mower, and an inability to grab with poor grip. Fractures to the left wrist and left thumb prior to service were also noted. Symptoms involving the left wrist and hand included the inability to hold a book in the left hand for any period time due to fatigue. He reported he drove using his right hand. He denied weakness, but complained of intermittent numbness and tingling of all five fingers, numbness and tingling that began in finger tips and hand, not higher up in the arm migrating down to fingers. He stated he experienced numbness and tingling at last daily, depending on activity. The examiner found there were no findings or signs or symptoms attributable to any condition affecting the cranial nerves, that cranial nerve-related muscle strength testing was normal, and that cranial nerve-related sensory testing was normal. It was further noted that the Veteran did not have a peripheral nerve condition, but that he had residual blisters to the left and right palmer surfaces, symmetrically, suggestive of repetitive grip work. Vibratory sensation was intact to the fingers, bilaterally. Deep tendon reflexes were hypoactive at the biceps, bilaterally, and absent to the triceps and brachioradialis, bilaterally. Phalen's and Tinel's sign tests were negative. The examiner's assessment was no clinical or diagnostic evidence of a neurological deficit. The examiner noted that the Veteran was to be examined for a motor skills disorder, also known as motor coordination disorder or motor dyspraxia, and that a motor coordination disorder is a developmental disorder that impairs motor coordination in daily activities that is neurological in origin. It was noted that on the day of the examination clinical presentation demonstrated a normal appearing left hand and left wrist. The peg test was a subjective demonstration and not consistent with prior finger tapping or finger to finger testing. It was further noted that a nerve conduction (NVC) study and EMG had been scheduled, but the Veteran had refused testing. The examiner stated that motor dysfunction is neurological in origin, and that without the benefit of the NCV and EMG studies, a diagnosis could not be provided. On clinical examination of the fingers, the examiner noted the Veteran could extend all ten fingers and close his hands into a fist. Grip strength was 5/5, bilaterally. There was no thenar atrophy, and his left thenar muscle was a bit larger than the right. There was no hypothenar atrophy, with both hypothenar muscles in size. Grip was strong, bilaterally, and he was successful with graphesthesia with quick accurate responses. It was noted that he reported he could not identify an object that was placed in his left hand. Stereognosis was intact on the right. Finger to finger testing was erratic. The demonstration of the 9-hole peg test was a failure and he attempted to pick up the pegs with a claw hand configuration on the left. On neurological examination he was able to make a circle with his thumb and index finger. Finger tapping for ten second intervals was normal with tapping of the index finger against the pad of the thumb. When buttoning his shirt and tying his shoes he did not use his left hand. The examiner was unable to explain the disparity between the 9-hole peg test and the actual movement on finger to finger and finger tapping during physical examination. In statements and personal hearing testimony the Veteran and spouse asserted that service connection was warranted for fine motor skill deficit as secondary to TBI. In support of the claim medical literature addressing TBI was provided in November 2013. Based upon the evidence of record, the Board finds that a bilateral fine motor skill deficit disability developed as a result of the service-connected TBI. The medical opinions and medical literature provided in this case are persuasive. The September 2009 physical evaluation board found he had weakened grasp of the upper extremities and decreased fine motor dexterity/speed. Although the August/December 2011 VA examiner noted he had normal motor activity most of the time with mildly slower activity at times due to apraxia only to the left upper extremity, no opinion was provided indicating that the September 2009 finding was erroneous nor than the manifestations at that time were transient or acute. Apraxia is the loss of ability to carry out familiar, purposeful movements in the absence of paralysis or other motor sensory impairment. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 120 (30TH Ed. 2003). Resolving reasonable doubt in favor of the Veteran, the Board finds that apraxia is shown as a result of service-connected TBI. Therefore, the service connection claim for a bilateral fine motor skill deficit disability must be granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral fine motor skill deficit as secondary to TBI is granted. REMAND A review of the record reveals that additional development is required prior to appellate review of the increased rating issue remaining on appeal. A June 2012 VA fee-basis eye examination report from C.W., O.D., noted the Veteran had reduced depth perception by subjective history and clinical testing (140 minute arc). It was the examiner's opinion that was most likely a result of head trauma. In a subsequent July 2012 statement, the examiner noted that the Veteran's visual fields did not check out as normal in all meridians and that those fields did not resemble visual field loss as a result of TBI. It was noted that they more resembled a visual field of a person with deep-set eyes and/or prominent nose. Anatomic structures such as those, it was noted, can cause a restriction of visual field even though there is no ocular defect. The examiner stated that he did not believe the Veteran had a visual field defect. The Board finds that as service connection is established for a visual impairment (reduced depth perception) secondary to TBI, further development is required to determine all manifest symptoms and whether the disability may be more appropriately rated under other analogous rating criteria. Alternatively, if it is found that this case presents such an exceptional or unusual disability picture the matter must be referred for extra-schedular rating consideration under the provisions of 38 C.F.R. § 3.321(b) (2014). While the Veteran previously indicated an unwillingness to be further examined, he has recently submitted a copy of stipulations in which an examiner recommended further examination for the TBI symptoms. Accordingly, the case is REMANDED for the following action: 1. Obtain all pertinent medical records not yet associated with the appellate record, and associate them with the record. 2. Schedule the Veteran for a VA examination by an appropriate medical specialist to determine the severity of service-connected visual impairment (reduced depth perception) secondary to TBI. All subjective and objective manifestations attributable to the disability must be identified and addressed. All necessary tests and studies should be conducted, to include visual field testing. The examiner should state whether there is any visual field deficit. If so, the examiner should state whether it is at least as likely as not (50 percent or greater probability) that any visual field deficit is due to the service-connected TBI. The physician should identify any acquired expertise related to such disabilities and any medical or scientific literature reviewed in conjunction with the provided opinion. 3. Then, readjudicate the claim remaining on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs