Citation Nr: 1612777 Decision Date: 03/30/16 Archive Date: 04/07/16 DOCKET NO. 13-12 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to service connection for a left wrist condition. 2. Entitlement to service connection for a right eye disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Daniel Bassett, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1979 to September 1983. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In that rating decision, the RO denied entitlement to service connection for a left wrist injury. In December 2015, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. The issues of service connection for left eye and disability individual unemployability due to service-connected disability (TDIU) have been raised by the record in statements in March 2012 and February 2016. However, these claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these claims, and these claims are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a left wrist condition. He asserts that he experienced pain, tingling, and swelling in his left wrist during service. The Veteran also mentioned having a brace for his wrist. VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013). The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Mclendon, 20 Vet. App. at 83. The file includes evidence of the Veteran's current left wrist pain. A March 2012 encounter with his doctors noted radiation of pain from the Veteran's wrists to his forearms bilaterally. The April 2013 VA examiner noted pain and numbness in the Veteran's left upper extremity, among other limitations. At the hearing, the Veteran pointed to Service Treatment Records (STRs) that show evidence of left wrist pain during service. He also stated that his wrist condition has been painful since his service. Thus, the evidence suggests the Veteran has a current disability, there is some evidence of an in-service event, and he has testified that his symptoms have been constant since service. However, there is insufficient competent evidence for the Board to make a decision. VA had the Veteran examined in November 2011. Despite recording limitations on functioning in the Veteran's left wrist, the November 2011 VA examiner did not diagnose the Veteran with a left wrist disability. At the hearing, the Veteran mentioned imaging from 2012 of his left wrist, which the November 2011 VA examiner would not have had. The file does not include this record, only an April 2013 VA examination of the Veteran's right wrist. Records from the April 2013 VA examination indicate that the VA examiner was told to evaluate only the Veteran's right wrist, not his left wrist. After the hearing, the Veteran obtained an opinion from his treating doctor. This opinion documented the history of the Veteran's treatment for his left wrist condition. The Veteran's doctor mentioned imaging from April 2014. The April 2014 imaging is not present in the file. The Veteran's doctor also offered a new diagnosis for the Veteran's left wrist condition, Complex Regional Pain Syndrome. Further, the Veteran's doctor noted his report of experiencing pain in service, but did not provide an opinion as to the nexus between the Veteran's current disability and his in-service events. There is no evidence of a competent nexus opinion in the file. Thus, the Veteran's claim must be remanded to obtain the outstanding evidence, clarify the Veteran's current diagnosis, and obtain a nexus opinion. The Veteran raised a claim for service connection for a right eye disability in January 2012. Although not entirely clear from the text of a February 2012 rating decision, the accompanying March 2012 cover letter clarifies that the RO did deny service connection for a right eye condition. The Veteran filed a timely notice of disagreement (NOD) in April 2012. No subsequent action has been taken in response to the Veteran's NOD, and the RO did not supply the Veteran with a statement of the Case (SOC) in reference to his right eye disability claim. Where an NOD has been timely filed with regard to an issue, and an SOC has not been issued, the Board must remand the claim to the AOJ so that an SOC may be issued. Manlincon v. West, 12 Vet. App. 238 (1999). Thus, on remand, the AOJ must issue an SOC for the Veteran's claim of entitlement to service connection for a right eye disability so as to provide the Veteran the opportunity to perfect and appeal. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §19.26 (2015); see Manlincon, 12 Vet. App. at 238. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all VA medical records pertaining to the Veteran not currently of record, dated from March 2013. In addition, obtain any x-rays or imaging results pertaining to the left wrist since January 2012 that are not already associated with the claims file. 2. With appropriate authorization from the Veteran, obtain and associate with the electronic record all pertinent private treatment records identified by the Veteran that have not already been obtained. 3. After obtaining any outstanding records, to the extent possible, schedule the Veteran for a VA examination to determine the current nature and the likely etiology of the claimed left wrist disability. All indicated tests must be conducted. The examiner should elicit from the Veteran and record a full clinical history referable to the claimed left wrist disability. The VA examiner must specifically state the current diagnosis for the Veteran's left wrist disability or explain why the Veteran does not have a left wrist disability. Based on his/her review of the case, the examiner should opine as to whether any left wrist disability is at least as likely as not (meaning likelihood of at least 50%) caused by or otherwise related to service, including whether it had its onset during service. The Veteran's electronic record must be reviewed, including the Veteran's service treatment records, VA and private medical records, lay statements, including the Veteran's at the hearing, the November 2011 VA examiner's report, the April 2013 VA examiner's report, and the December 2015 opinion from the Veteran's doctor that all show the Veteran currently experiences left wrist pain and other symptoms. The rationale for all opinions expressed should be provided. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching his or her conclusions. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 4. Issue a Statement of the Case regarding the issue of entitlement to service connection for a right eye disability, as well as any other outstanding claim, and advise the Veteran of the procedural requirements to continue an appeal of that issue. If, and only if, a substantive appeal is timely filed, the issue should be certified to the board. 5. After undertaking any other development deemed to be warranted, the AOJ should then re-adjudicate the claims of service connection for residuals of a left wrist condition. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action. 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). _________________________________________________ MICHAEL LANE 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).