Citation Nr: 1608622 Decision Date: 03/03/16 Archive Date: 03/09/16 DOCKET NO. 09-06 869A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a bilateral hand disorder, to include osteoarthritis and/or carpal tunnel syndrome. 2. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his mother ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1974 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction is with the RO in New Orleans, Louisiana. The Board previously remanded the Veteran's claims in a January 2015 decision. The claims are now back before the Board for appellate review. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2014. A transcript of that hearing has been associated with the claims file. This appeal was processed using Virtual VA and the Veterans Benefits Management System paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). A remand is necessary regarding the lumbar spine disorder to obtain substantial compliance with the Board's January 2015 remand directives and to provide the Veteran with due process. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in its January 2015 remand, the Board requested that the AOJ obtain a VA addendum opinion in order to address the Veteran's lumbar spine disorder. Review of the record shows that while an addendum opinion was associated with the claims file in March 2015, this opinion addressed another Veteran. The AOJ then relied upon the misfiled medical opinion in adjudicating the lumbar spine disorder in its June 2015 Supplemental Statement of the Case. Remand is also required regarding both claims to obtain adequate etiological opinions that address the relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In June 2015, another VA addendum opinion was obtained for the Veteran's bilateral hand and back disorder claims. However, this opinion failed to address relevant evidence of record, to include service treatment records regarding both the lumbar spine and the hands. Instead, the examiner relied solely upon an October 1983 VA examination, performed in connection with a prior, unrelated claim, which had not diagnosed the Veteran with a left hand disorder or carpal tunnel syndrome. As such, this VA opinion is inadequate. The Veteran should be afforded new VA examinations, which comply with the Board's January 2015 remand directives and fully address the Veteran's service treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file, to include all updated VA medical records. All information obtained must be made part of the paper or electronic file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and his representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 3. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded VA examination(s) to determine the nature and etiology of any bilateral hand and/or lumbar spine disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. An explanation for all opinions expressed must be provided. First, the examiner must delineate all currently diagnosed hand and spine disorders. If hand arthritis, carpal tunnel syndrome, lumbar spine stenosis, lumbar spine degenerative disc changes, or lumbar spine arthritis is not diagnosed, an explanation must be provided. Second, the examiner must opine as to whether it is at least as likely as not that each currently diagnosed bilateral hand disorder is causally or etiologically related to the Veteran's military service. The examiner should specifically address the following: 1) Veteran's service treatment records, to include the October 1982 bone scan of the hands; 2) the December 2012 VA examination; 3) the June 2015 VA examination; and 4) the Veteran's lay statements from the Board hearing indicating symptoms during and after service. Third, the examiner must opine as to whether it is at least as likely as not that each currently diagnosed lumbar spine disorder is causally or etiologically related to the Veteran's military service. The examiner should specifically address the following: 1) Veteran's service treatment records, to include the May 1980 record indicating a muscle strain, and January 1981 and October r1982 x-rays of the lumbar spine; 2) the October 1982 VA Examination; 3) a January 1996 MRI; 4) the December 2012 VA examination; and 5) the Veteran's lay statements regarding back symptoms during and since service discharge. The examiner must also provide comment upon the presence of service-connected fibromyalgia as it relates to the Veteran's complaints of hand and back pain. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. 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 preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case, and an appropriate period of time should be allowed for response. 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. MILLIKAN 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).