Citation Nr: 1643235 Decision Date: 11/10/16 Archive Date: 12/01/16 DOCKET NO. 10-20 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for left median demyelinating sensory neuropathy of the wrist and elbow to include as secondary to service-connected right arm injury residuals with reflex sympathetic dystrophy, ulnar, radial, and median neuropathy. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Reed, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1973 to October 1974. This case comes before the Board of Veterans' Appeals (the Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. This claim was previously before the Board in April 2015. At that time, the Board remanded the issue listed above as well as the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. Upon remand the Veteran's TDIU claim was granted. Therefore, the only issue before the board is that of service connection for left median demyelinating sensory neuropathy. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). It imposes upon VA a duty to ensure compliance with the terms of the remand. Here, the April 2015 remand order was not substantially complied with, and a remand is warranted. In April 2015, the Board remanded this claim to the AOJ in order to obtain a VA neurological examination for the Veteran's claimed neurological condition of the left arm. The remand called specifically for an examination by a physician. This was highlighted by italicized language in the remand order. Upon remand the Veteran did not received an examination by a physician. Instead, the Veteran received an examination by a physician's assistant. Additionally, the examiner was requested to address the findings of Dr. M's June 1998 report. The examiner's August 2015 opinion did not do so. Therefore, substantial compliance with the remand was not achieved. The Board further notes that additional medical records were added that are inconsistent with the medical findings of the August 2015 examination. The examiner noted in the August 2015 report that the EMG results found carpal tunnel syndrome only in the right wrist. It was also noted that the Veteran's left wrist was within normal limitations. However, treatment records from Dr. R, an orthopedist, in February 2016 indicated the Veteran had neuropathy, causalgia, and carpal tunnel syndrome in the left arm. Additionally, records from Dr. S in April 2016 indicated there was a lesion on the Veteran's ulnar nerve. As these conditions were not addressed in the August 2015 opinion, a remand is warranted to address whether these conditions are related to the Veteran's active service or other service-connected disabilities. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA neurological examination, by a physician, to determine the nature and etiology of any current left upper extremity disorder, to include left median demyelinating sensory neuropathy of the wrist and elbow, carpal tunnel syndrome, and causalgia. All indicated tests and studies should be performed and all findings must be reported in detail. The entire record, including a copy of this remand, must be made available for review, and the physician should note such review in his or her report. The physician should identify all diagnoses related to the Veteran's left arm that are supported by the record or examination from April 2008, forward. For each diagnosis the physician should state whether it is as likely as not (a probability of 50 percent or greater) that the diagnosed condition was related to or caused by the Veteran's active service. For each diagnosis not attributed to the Veteran's active service, the physician should state whether it is as likely as not (a probability of 50 percent or greater) that the diagnosed condition was caused by or related to the Veteran's service-connected disabilities, to include right arm injury residuals and a pain disorder. For each diagnosis not attributed to the Veteran's active service or a service-connected disability, the physician should state whether it is as likely as not (a probability of 50 percent or greater) that the diagnosed condition was aggravated by the Veteran's service-connected disabilities, to include right arm injury residuals and a pain disorder. "Aggravated" is defined as a worsening of the underlying condition (versus a temporary flare-up of symptoms) beyond its normal progression. If aggravation is found, the physician should identify, to the extent possible, the baseline level of severity of the aggravated condition prior to aggravation; as well as the earliest medical evidence of the onset of aggravation. Additionally, the physician should address the findings of Dr. M in his June 1998 report regarding aggravation, the findings of Dr. R in February 2016, and those of Dr. S in April 2016. Specifically, the physician should indicate whether the findings are supported by the medial evidence of record, and explain any discrepancies between those findings and the opinion of the physician regarding the nature, onset, or etiology of the left arm condition. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. Any opinions offered should be accompanied by the underlying reasons for the conclusions. If the physician is unable to offer the requested opinions , he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 2. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. 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). _________________________________________________ K. J. ALIBRANDO 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).