Citation Nr: 1635831 Decision Date: 09/14/16 Archive Date: 09/20/16 DOCKET NO. 10-36 140A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for residuals of carpal tunnel syndrome (CTS), status post-operative, right hand, as secondary to service-connected Lyme disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from January 1980 to May 1981. He also was a member of the U.S. Army Reserve, during which he performed tours of active duty for training (ACDUTRA) and inactive duty for training (IACTRA). This appeal to the Board of Veterans' Appeals (Board) arose from a May 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Boston, Massachusetts that denied the claim. The Veteran indicated on his Substantive Appeal that he desired a Board hearing at the RO via video conference. (09/29/2010 VBMS-VA-9) In August 2016, the Veteran's representative informed the Board that the Veteran no longer desired a Board hearing and withdrew the request. See 38 C.F.R. § 20.702(e) (2015). In September 2010, he also requested a local hearing before a decision review officer. (09/22/2010 VBMS-Hearing Request). An informal conference was held in lieu of a formal hearing. (03/31/2015 VBMS-VA-21-0820) The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A March 2015 examination report reflects the examiner's opinion that it was at least as likely as not that the Veteran manifested current residuals of Lyme's disease that he contracted during his initial tour of active service. The examiner noted, however, that the Veteran's CTS, status post-operative was not due to the Lyme's disease. (03/09/2015 VBMS-C&P Exam, p. 1). In April 2015 the examiner determined that the Veteran's Lyme disease residuals included pain in both hands and the fingers of each. (04/04/2015 VBMS-C&P Exam). In an April 2015 rating decision, the RO granted service connection for "residuals of Lyme disease, also claimed as joint pain, knee condition, back condition, shoulder disorder, and right hand pain," and assigned an initial 40-percent rating, effective in February 2007. (04/06/2016 VBMS-Rating Decision-Narrative) The rating decision specifically noted that the action constituted a full grant of benefits claimed. Id., p. 2. Yet, the RO issued a Supplemental Statement of the Case (SSOC) that reflected the issue of service connection for CTS as due to Lyme disease is still in issue and certified it to the Board. If so, as the Veteran's representative noted in the appellate brief, the examiner did not assess whether the Lyme disease aggravated the CTS residuals. Where service connection is in effect for one diagnosis involving some component of an anatomical or functional system, and there are additional diagnoses concerning pathology of that system of record, there must be evidence that permits the adjudicators to distinguish between manifestations that are service-connected and those that are not. See Waddell v. Brown, 5 Vet. App. 454, 456-57 (1993). When it is not possible to separate the effects of a non- service-connected condition from those of a service- connected condition, VA regulations dictate that such signs and symptoms be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102 (2003). The case must be assessed further to determine if the grant noted in the April 2015 rating decision in fact subsumed the Veteran's claimed right hand pain. If not, then medical personnel must determine if the Veteran's right hand CTS symptoms can be distinguished from those caused by the Lyme disease. Accordingly, the case is REMANDED for the following action: 1. The AOJ shall determine if the award noted in the April 21015 rating decision subsumed any claim by the Veteran for right hand pain, regardless of the etiology. If the AOJ determined that right hand pain due to post-operative CTS is not included in the April 2015 rating, return the claims file to the examiner who conducted the April 2015 VA examination. Ask the examiner to opine whether the right hand pain symptoms due to CTS and those that are due to Lyme disease residuals can be distinguished? If the answer is yes, the examiner is to note which right symptoms are caused by CTS, and those that are caused by the Lyme disease. For any right hand pain that it is due to CTS, the examiner is asked to opine whether there is at least a 50-percent probability that is aggravated-that is, chronically worsened beyond its natural progression, by the service-connected Lyme disease. A full explanation should be provided for any opinion provided. In the event the examiner who conducted the April 2015 Lyme examination is no longer available, the AOJ shall send the claims file to a comparably qualified examiner. If the substitute examiner advises that an examination is needed to render the requested opinion, the AOJ shall arrange the examination. 2. After all of the above is complete, re-adjudicate the issue considering all relevant evidence. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a SSOC. Then, return the case to the Board. The Veteran 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). _________________________________________________ ERIC S. LEBOFF 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).