Citation Nr: 1603169 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 08-10 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for carpal tunnel syndrome of the left hand, to include as secondary to service-connected right wrist tenosynovitis. 2. Entitlement to a rating in excess of 20 percent for residuals of dislocations of the right (major) finger, status post fusion of the proximal interphalangeal (PIP) joint, with swan neck deformity of the right small finger. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and M.C. ATTORNEY FOR THE BOARD A. Ishizawar, Counsel INTRODUCTION The Veteran served on active duty from May 1980 to January 1989. These matters are before the Board of Veterans' Appeals (Board) on appeal from June 2007 and June 2012 rating decisions of the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO). The June 2007 rating decision, in pertinent part, denied a rating in excess of 20 percent for residuals of dislocations of the right (major) finger, status post fusion of the PIP joint, with swan neck deformity of the right small finger. The June 2012 rating decision and accompanying notification letter, in pertinent part, denied service connection for carpal tunnel syndrome of the left hand. In May 2014, a videoconference hearing was held before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the Veteran's claims file. In September 2014, the case was remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As was noted in the Introduction, this case was previously before the Board in September 2014 when it was remanded for additional development. Specifically, with respect to the claim for service connection for carpal tunnel syndrome of the left hand, the RO/AOJ was instructed to schedule the Veteran for a VA examination to determine the nature, onset and likely etiology of his carpal tunnel syndrome of the left hand. The Board explained that during a September 2011 VA examination, it was the examiner's opinion that it could not be stated without resorting to speculation that the right tenosynovitis secondarily produced or was the proximate cause of the left hand carpal tunnel syndrome. However, the examiner did not also opine as to whether the left hand carpal tunnel syndrome was aggravated by his service-connected right wrist tenosynovitis; therefore, the opinion was inadequate. As for the Veteran's claim for an increased rating for his service-connected right (major) finger, status post fusion of the PIP joint, with swan neck deformity of the right small finger, the RO/AOJ was instructed to obtain outstanding/updated VA treatment records (from September 2010 to the present) and schedule the Veteran for an appropriate examination to assess the current severity of his service-connected disability. Finally, the RO/AOJ was instructed to readjudicate both claims (in a supplemental statement of the case (SSOC)) after the requested development was completed. A close review of the record does not show that any of the development requested in the Board's September 2014 remand has been completed. As noted by the Veteran's representative in September 2015 written argument, the Veteran has not been scheduled for a VA examination in either of the matters still on appeal before the Board. His more recent VA treatment records have also not been associated with the claims file. Therefore, the Board has no recourse but to remand the claims again to ensure that the previously requested development is completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following actions: 1. Obtain VA treatment records from September 2010 to the present, including from Wade Park and the Cleveland, Ohio VA Medical Centers. 2. After the above records development is completed, schedule the Veteran for a VA examination to determine the nature, onset, and likely etiology of his carpal tunnel syndrome of the left hand. The claims file (to include this remand and the September 2014 remand) must be made available to and reviewed by the examiner prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. (a) The examiner is to state whether it is at least as likely as not (50 percent or better probability) that the Veteran's left hand carpal tunnel syndrome had its onset in service or is otherwise etiologically related to his service. (b) The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's left hand carpal tunnel syndrome was either caused by OR aggravated by his service-connected right wrist tenosynovitis. The examiner is advised that a response regarding both direct causation and aggravation must be provided or the examination report will be returned as inadequate. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. If aggravation is found, the examiner is asked to state the baseline level of severity of the left hand carpal tunnel syndrome before the onset of aggravation, to discuss the earliest medical evidence establishing the current level of severity, and to discuss what level of increase in severity from the baseline was due to the natural progression of the Veteran's left hand carpal tunnel syndrome and what level of increase was due to aggravation from his service-connected right wrist tenosynovitis. In formulating the opinions, the VA examiner is also asked to consider and comment on the private opinion from Dr. T.N. (dated in June 2014 and received by VA in July 2014). The examiner must provide a detailed rationale for any opinion expressed. If an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. After the above records development is completed, schedule the Veteran for an appropriate VA examination for his right (major) finger, status post fusion of the PIP joint, with swan neck deformity of the right small finger. The claims file (to include a copy of this remand and the September 2014 remand) must be made available to and reviewed by the examiner prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should identify all manifestations of the Veteran's right (major) finger, status post fusion of the PIP joint, with swan neck deformity of the right small finger, and indicate the level of functional impairment caused by that disability, if any. 4. After the above development has been completed, review the file and ensure that all development sought in this remand is completed. Undertake any additional development indicated by the results of the development requested above, and re-adjudicate the claims. If any remain denied, the RO/AMC should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The appellant 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 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). _________________________________________________ D. JOHNSON Acting 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).