Citation Nr: 1639515 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 12-20 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a disability manifested by sensory deficits of the bilateral hands. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1992 to April 1997. This matter comes before the Board of Veterans' Appeals (Board) from an August 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This matter was previously remanded by the Board in June 2015. As discussed below, the Board finds there has not been substantial compliance with its prior remand directives, such that an additional remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers the right to compliance with remand orders). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND After a thorough review of the claims file, the Board has determined that additional evidentiary development is necessary regarding the Veteran's claim of entitlement to service connection for a disability manifested by sensory deficits of the bilateral hands. Unfortunately, the matter must again be remanded due to noncompliance with prior remand directives articulated by the Board in July 2015, as noted by the Veteran and her representative in the August 2016 Informal Hearing Presentation (IHP). See Stegall, 11 Vet. App. at 271. VA's duty to assist includes obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2014). Furthermore, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted in the Introduction above, this matter was previously remanded by the Board in June 2015. Therein, the Board noted that there was contradictory medical evidence as to whether the Veteran had a disability of the bilateral hands. In particular, a May 2010 VA examination noted the Veteran's complaints of pain, weakness, tremors, and decreased sensation in her hands; however, following examination and an electromyography (EMG) study of the left upper extremity, the examiner concluded that there was no clinical or electrophysiological evidence of cervical radiculopathy (although notably, a concurrent EMG study of the right upper extremity was not conducted). Private treatment records from June 2010 document a diagnosis of cervical neuropathy/radiculopathy. A January 2013 VA opinion diagnosed no sensory deficits and concluded that the Veteran's symptoms were most consistent with psychiatric syndrome; however, the examiner also opined that the Veteran's tremors (including tremors of her hands) were at least as likely as not related to tremors noted during active service. A February 2014 VA electrodiagnostic study revealed the Veteran's unusual tremor/pain syndrome, with episodes of almost seizure-like activity, some weakness of left hand flexion and grip due to pain, and subjective decrease of sensation over left hemibody consistent with right mild tremor on sustained posture of bilateral hands. As such, the June 2015 Board remand directed that the Veteran was to be afforded an appropriate VA examination to address the remaining questions as to the current diagnosis and etiology of the Veteran's claimed bilateral hand disability. In particular, the Board directed the examiner to diagnose or rule-out a current disability of the bilateral hands and to address the Veteran's tremors, decreased sensation, weakness, and pain documented in the record. The examiner was also advised to provide a complete rationale for any opinion given, including discussion of evidence contrary to the opinion rendered, and if the examiner was unable to render an opinion without resorting to mere speculation, he/she was to provide reasoning as to why an opinion could not be given and whether any additional evidence or testing would assist in providing such opinion. Following the June 2015 Board remand, the Veteran was afforded a VA peripheral nerves examination in July 2015. Notably, the VA examiner concluded a review of the Veteran's claims file and examination did not reveal any cause for her hand symptoms. The examiner concluded that there was no diagnosable service-related condition and stated that the pain pattern, numbness, and tremors were atypical, and that any etiology offered as to a diagnosis would be speculative at best. The August 2016 IHP rightly points out that the July 2015 VA examination is inadequate to adjudicate the Veteran's claim. Significantly, the VA examiner's opinion did not specifically address the contradictory medical evidence regarding the Veteran's bilateral hand symptoms, including tremors, decreased sensation, weakness, and pain. Moreover, while the examiner stated there was no diagnosable service-related condition, the examiner implicitly recognized the Veteran's bilateral hand symptoms. However, the examiner's conclusion that any etiology offered as to a diagnosis would be speculative at best was unsupported by a rationale as to why an opinion could not be given and whether any additional evidence or testing would assist in providing such opinion. As such, the July 2015 VA examination does not substantially comply with the Board's prior remand directives and is inadequate to adjudicate the Veteran's claim of entitlement to service connection for a disability manifested by sensory deficits of the bilateral hands. See Stegall, supra; see also Barr, 21 Vet. App. at 312. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's medical records from Poplar Bluff from July 2015 to the present. 2. Schedule the Veteran for a VA neurology examination with a qualified VA neurologist to determine the nature and etiology of her claimed disability manifested by sensory deficits of the bilateral hands. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All diagnostic tests should be conducted that are medically indicated to resolve the pertinent question, with the Veteran's consent, and the reports of any such studies should be incorporated into the examination report. a) The examiner should first either diagnose or rule-out a current disability of the bilateral hands. In rendering a diagnosis, the examiner must address the contradictory medical evidence of record discussed above, including the Veteran's documented tremors, decreased sensation, weakness, and pain. b) If there is a diagnosed current disability of the Veteran's bilateral hands, the examiner should provide the following opinions: i) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed disability of the bilateral hands was incurred during the Veteran's active service or is otherwise etiologically related to her active service. ii) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed disability of the bilateral hands was caused or aggravated (permanently worsened beyond the natural progress of the disease) by a service-connected disability, to include a cervical spine disability. The examiner should provide a complete rationale for any opinion given, including a full discussion of any relevant evidence of record. If the examiner is unable to render an opinion without resorting to mere speculation, he/she must so state and provide clear reasoning as to why an opinion cannot be given and whether any additional evidence or testing would assist in providing such opinion. 3. Following the above development, review the resulting examination reports and opinions in order to ensure their adequacy and compliance with the above directives. If any opinion is inadequate for any reason, take whatever corrective action is deemed necessary. 4. Thereafter, readjudicate the Veteran's claim on appeal. If any benefit sought on appeal remains denied, provide the Veteran and her representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond, after which the matter should be returned to the Board for further adjudication, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MICHELLE L. KANE 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).