Citation Nr: 1538273 Decision Date: 09/08/15 Archive Date: 09/18/15 DOCKET NO. 09-13 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for a neurological disorder affecting the right upper extremity, other than cervical radiculopathy, to include as secondary to service-connected status post herniated nucleus pulposus C5-6 with fusion and radiculopathy of right arm, right leg, and history of radiculopathy of left arm ("cervical spine disability"). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1983 to June 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied entitlement to service connection for bilateral carpal tunnel syndrome (CTS). The Veteran appealed the issue of service connection for bilateral CTS. The RO granted service connection for CTS of the left hand in a March 2009 rating decision. Because the Veteran was awarded service connection for this disability, it is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In an April 2009 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge; however, in September 2011 he withdrew his hearing request. The claim was previously considered by the Board in October 2012 and October 2014. In October 2012, the Board reviewed the claim to reflect current diagnostic codes and recharacterized the claimed disability to a neurological disorder affecting the right upper extremity other than cervical radiculopathy. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, this matter must be remanded again to the RO/AMC due to noncompliance with remand directives articulated by the Board in previous Board remands. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand of the Board or the Court is not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board remanded the case in October 2012 and October 2014 to, in relevant part, provide the Veteran with a VA examination to determine the nature and etiology of any neurological disorder of the right upper extremity, other than cervical radiculopathy (for which the Veteran is currently service-connected). The October 2012 remand directed the VA examiner to opine on whether any diagnosed neurological disability of the right upper extremity is traceable to the Veteran's period of active service, or, if not, whether it was caused by or made chronically worse by a service-connected disability, including the cervical spine disability. The examiner was instructed to discuss the medical probabilities that any diagnosed neurological disability is related to the multiple injuries to the Veteran's right hand during service. The examiner was also instructed to reconcile any opinion with (1) the findings of right upper extremity weakness during service; (2) the post-service EMG studies diagnosing CTS and ulnar neuropathy; and (3) the October 2006 finding by a VA clinician that the Veteran's paresthesia, numbness, and CTS of the right upper extremity are traceable to his military service. The Veteran subsequently underwent a VA examination in December 2012, and the examination report is associated with the claims file. In October 2014, the Board remanded the case again because the December 2012 VA medical examiner's opinion was inadequate. The examiner concluded that it was less likely than not that the Veteran's CTS and ulnar neuropathy were incurred in or caused by the Veteran's active service, but explained only that there was no evidence of CTS in service. The examiner did not address whether any event or injury in service led to the development of the Veteran's right upper extremity neurological condition years after separation from service. Furthermore, the examiner also opined that it was less likely than not that the Veteran's neurological disorders of the right upper extremity are "related" to his service-connected cervical radiculopathy, but did not offer any explanation for this opinion. A medical opinion that contains only data and conclusions is accorded no weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board remanded again for an addendum medical opinion. In December 2014, the VA examiner who conducted the December 2012 examination provided a medical addendum opinion. This addendum lacks clarity, is internally inconsistent, and also contradicts prior medical opinions without explaining the rationale for the changed opinion. Specifically, in the medical addendum opinion, the examiner stated the claimed conditions were at least as likely as not incurred in or caused by the claimed in-service injury, or illness; however, this contradicts his finding in December 2012 that the conditions were not related to service. As noted, the examiner does not explain the basis for this changed opinion and in fact, states that his opinion is unchanged from the December 2012 examination. Furthermore, his favorable opinion is internally inconsistent with the remainder of the addendum opinion which does not link the claimed conditions to service. On the contrary, the remainder of the addendum opinion notes that the CTS and ulnar neuropathy are mild in nature and asymptomatic, and thus relates the Veteran's current symptoms to his service-connected cervical radiculopathy and not the CTS or ulnar neuropathy. The examiner further noted that there was no evidence of CTS during service, and opined that the CTS and ulnar neuropathy were less likely than not related to the Veteran's cervical radiculopathy and less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner concluded, "In other words, at the time I evaluated him it was my opinion that his complaints were related to the service-connected cervical radiculopathy and not to a [CTS] or ulnar neuropathy." Regarding the latter part of the medical addendum opinion, which indicates that the Veteran's current complaints are related to his already service-connected radiculopathy because his CTS and ulnar neuropathy are mild and asymptomatic, the Board notes that regardless of the current severity of his symptoms, the record reflects that the Veteran has current diagnoses of CTS and ulnar neuropathy. Accordingly, a medical opinion regarding the etiology of these claimed disabilities is necessary. In light of the above, the Board finds that another remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Accordingly, the case is REMANDED for the following action: 1. Refer the claims folder to a VA physician other than the physician who provided the December 2012 and December 2014 opinions. For any diagnosed neurological disability of the right upper extremity, to include carpal tunnel syndrome (CTS) and/or ulnar neuropathy, the examiner is asked to opine on whether it is at least as likely as not (50 percent or greater) that the disability: (a) Had its onset in service; (b) Was caused by an injury to the right hand or right upper extremity in service, to include several reports of direct injuries to the right upper extremity in the Veteran's service treatment records, including a 1985 complaint of right neck and shoulder trauma, a 1986 right hand injury, a 1991 right arm and elbow trauma, and right upper extremity weakness; (c) Was caused by a service-connected disability, to include the cervical spine disability and/or cervical radiculopathy; OR (d) Was aggravated (made chronically worse) by a service-connected disability, to include the cervical spine disability and/or cervical radiculopathy. The examiner is asked to reconcile any opinion with the October 2006 finding by a VA clinician that the Veteran's paresthesia, numbness, and CTS of the right upper extremity are traceable to his military service. A complete rationale must be provided for all findings and conclusions reached. The examiner must identify and explain the medical basis for the opinion, identify the pertinent evidence of record, and include any applicable medical treatises referenced. If the examiner is unable to render an opinion without resort to speculation, the examiner must explain why. If the VA examiner determines that further examination is necessary to render the requested medical opinion, the Veteran should be scheduled for such an examination. 2. After completing all indicated development, and any additional development deemed necessary, readjudicate the claim in light of all the evidence of record. If any benefit sought on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded a reasonable opportunity for response. 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 2014). _________________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).