Citation Nr: 1601273 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 11-05 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for lumbar spinal stenosis and spondylolisthesis, post lumbar laminectomy and fusion. 2. Entitlement to service connection for Depuytren's contracture of the right hand. 3. Entitlement to service connection for a right hand disorder, to include carpal tunnel syndrome (CTS) and peripheral neuropathy. 4. Entitlement to an increased rating in excess of 20 percent for a left little finger disability with soft tissue flexion contractures of the left hand (left hand disability). 5. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran had active service from August 1955 to August 1959. This matter came before the Board of Veterans' Appeal (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The issues on appeal were previously remanded by the Board in September 2014. The Veteran testified before the undersigned in a July 2014 Travel Board hearing, the transcript of which is included in the record. Although the RO has characterized the Veteran's claim for a right hand disorder as service connection for Depuytren's contracture of the right hand, the Veteran has not limited his claim for service connection to Depuytren's contracture of the right hand. The evidence of record demonstrates that the Veteran has been diagnosed with CTS and peripheral neuropathy of the right hand and wrist. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. In consideration of this holding and the other right hand diagnoses of record, the Board has recharacterized the claims as reflected on the title page. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted above, the issues on appeal were previously remanded by the Board in September 2014. Upon review of the record, it does not appear that any of the development requested in the September 2014 Board remand has been completed. As such, a remand is warranted. Stegall v. West, 11 Vet. App. 268 (1998). The specific reasons for remand are addressed below. Service Connection for Lumbar Spine Disorders Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2015). A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. See McLendon v. Nicholson, 20 Vet App. 79, 83 (2006). The Board has reopened the Veteran's claim for service connection for a lumbar spine disorder. The evidence demonstrates that the Veteran has been diagnosed with lumbar spinal stenosis and spondylolisthesis, post lumbar laminectomy and fusion. Further, the Veteran testified that he hurt his back during combat and has experienced back pain since service separation. The record indicates that the Veteran was awarded the Combat Action Ribbon. The Veteran has not been afforded a VA examination to address the etiology of his lumbar spine disorders. In light of the "low threshold" as announced in McLendon, the Board finds that remand for a VA examination is necessary to determine if the Veteran's currently diagnosed lumbar spine disorders are etiologically related to service. Service Connection for Right Hand Disorders The Board has reopened the Veteran's claim for service connection for Depuytren's contracture of the right hand. The Veteran has been diagnosed with CTS, for which he has undergone surgery, and peripheral neuropathy of the right hand/wrist. Although the Veteran has been afforded numerous VA examinations which address his left and right hand disorders, including Depuytren's contracture, CTS, and peripheral neuropathy, none have provided an opinion as to whether any currently diagnosed right hand disorder is related to service, to include being caught in a net for approximately 20 minutes while climbing down a ship. Accordingly, a VA medical opinion is necessary. Increased Rating for Left Finger/Hand Disability Upon review of the evidence of record, it does not appear that the RO has reviewed certain pertinent evidence of record in regard to the claim for an increased rating for the left finger/hand disability. Specifically, the RO last issued a statement of the case in February 2013 and, subsequently, the Veteran was afforded a VA hand and finger examination in March 2013 specific to his left hand disability. The Board also notes that a waiver of RO review has not been received in conjunction with this new medical evidence. Accordingly, the case must be remanded to the AOJ so that the AOJ may consider the claim in light of the evidence received subsequent to the February 2013 statement of the case. See generally See Disabled American Veterans et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (the Board may not consider additional evidence without having to remand the case to the agency of original jurisdiction (AOJ) for initial consideration and without having to obtain the appellant's waiver); 38 C.F.R. § 20.1304(c) (2015). TDIU As any decision with respect to the claims noted above may affect the claim for a TDIU, the claim for a TDIU is inextricably intertwined and therefore adjudication is deferred until adjudication of these claims. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA spine examination to assist in determining the etiology of his lumbar spine disorders. The claims file must be made available to the examiner for review, and the examination report should reflect that such review has been accomplished. All necessary testing should be conducted and all appropriate diagnoses rendered. The examiner is asked to address the following: (a) Provide a diagnosis for any lumbar spine disorder (Note: the Veteran has previously been diagnosed with lumbar spinal stenosis and spondylolisthesis, post lumbar laminectomy and fusion). (b) For each diagnosis identified, state whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's lumbar spine disorder(s) had its onset during service or is otherwise related to any in-service injury. (Note: The examiner should assume, for purposes of the opinion, that the Veteran sustained a back injury during service while diving to avoid sniper fire). See July 2014 Board Hearing Transcript at pg. 18. A rationale for any opinion reached must be provided. If the VA examiner concludes that an opinion cannot be offered without engaging in speculation then he/she should indicate this and explain the reason why an opinion would be speculative. 2. Obtain a VA medical opinion regarding the Veteran's right hand/wrist disorders (a physical examination is not required unless deemed necessary). The claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to completion of the medical opinion. The examiner is asked to address the following: (a) Provide a diagnosis for any right hand/wrist disorder (Note: the Veteran has previously been diagnosed with Depuytren's contracture of the right hand, carpal tunnel syndrome, and peripheral neuropathy of the right hand/wrist). (b) For each diagnosis identified, state whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's right hand disorder(s) had its onset during service or is otherwise related to any in-service event or injury. (Note: The examiner should assume, for purposes of the opinion, that the Veteran sustained a left and right hand injury during service while being caught in a net). See July 2014 Board Hearing Transcript at pgs. 10-11. A rationale for any opinion reached must be provided. If the VA examiner concludes that an opinion cannot be offered without engaging in speculation then he/she should indicate this and explain the reason why an opinion would be speculative. 3. Readjudicate the claim for an increased rating in excess of 20 percent for a left little finger disability with soft tissue flexion contractures of the left hand and issue a supplemental statement of the case which specifically discusses all evidence received since the February 2013 statement of the case, specifically the March 2013 VA hand and finger examination. 4. After completion of the foregoing and all other necessary development, the AOJ should re-adjudicate all issues on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ K. J. ALIBRANDO 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) (2015).