Citation Nr: 1645473 Decision Date: 12/05/16 Archive Date: 12/19/16 DOCKET NO. 10-49 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a bilateral wrist disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1980 to February 1981, and from March 1981 to October 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In April 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In May 2014, the Board remanded this case for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND 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 she is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran contends in her November 2008 claim that her "wrist injury [was] incurred while serving in [the] mess hall in June 1983 while in the Army." In April 2009, the Veteran stated that she did not complain about her wrist pain because she feared getting fired. At her April 2012 videoconference hearing, the Veteran testified that she injured her wrists in service "in the mess hall...there was some grease on the floor and I [was] walking by and I slipped up and I fell and I caught myself and my wrists started swelling....I caught myself with both my wrists and I've been having trouble [since]." See transcript, p. 3. The Veteran further testified that she was treated for her bilateral wrist injury in service after the fall. Id., p. 4. She reported that she has taken over-the-counter medication for her wrist pain during and after service. Id., pp. 5-6. The Veteran's service treatment records include a September 1982 record wherein a clinician wrote that the Veteran stated that she "works in [the] mess hall and she slid and fell on [her] back. [The patient] states she also may have hurt [her] wrist." The clinician diagnosed musculoskeletal strain with secondary inflammation and pain, although it is ambiguous whether that diagnosis applies to the back alone, or to the back and wrist(s). In her September 1983 Report of Medical Examination at separation from service, a clinician found that the Veteran's upper extremities and other musculoskeletal systems were normal. In her September 1983 Report of Medical History at separation from service, the Veteran reported that she had no arthritis, rheumatism, or bursitis; no bone, joint, or other deformity; and no neuritis. In December 2008, the Veteran's private physician, Dr. Voytik, diagnosed bilateral carpal tunnel syndrome and cubital tunnel syndrome. In September 2014, VA provided the Veteran with an examination. A physician found that x-rays were negative for the left wrist, and showed slight negative ulnar variance and mild degenerative change at the radiocarpal joint in the right wrist. The VA examiner provided a negative nexus opinion based on the absence of a diagnosis of the wrists in the service treatment records and in the September 1983 examination at separation from service. Remand is required because the September 2014 opinion is inadequate. A VA examiner should consider the appellant's lay description of her symptomatology in service and thereafter. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that a VA examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim of service connection could be proven"); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding a medical examination inadequate where the examiner "impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service"). Remand is also required in order to make all required attempts to obtain wrist x-rays in service identified by the Veteran's representative in the July 2016 Post-Remand Brief. The Veteran's service treatment records include a spine x-ray, but no evidence of a request for or film of any wrist x-ray. As the appeal is being remanded for development, the RO should ask the Veteran to identify any additional, pertinent medical treatment that she has received for her wrists, and take appropriate measures to obtain those records. Any additional, pertinent VA treatment records should either be made accessible electronically or be printed and added to the file. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that she identify any outstanding VA and non-VA records pertaining to her wrists that are not already of record. The RO should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file. The RO should also take appropriate measures to request copies of any wrist x-rays that were not associated with the Veteran's service treatment records, whether they were taken on a military installation or in a private hospital. Any negative response should be in writing and associated with the claims file. 2. Notify the Veteran that she may submit additional lay statements from herself and from other individuals who have first-hand knowledge of the nature and onset of her bilateral wrist disorders. She should be provided an appropriate amount of time to submit this lay evidence. 3. After associating any pertinent, outstanding records, the Veteran should be scheduled for an appropriate VA examination to determine the nature, extent, onset and etiology of her claimed bilateral wrist disorders. The claims folder should be made available and reviewed by the examiner. All indicated studies-including x-rays of the wrists, if applicable-should be performed, and all findings should be reported in detail. For each diagnosed wrist disorder-including bilateral carpal tunnel syndrome, cubital tunnel syndrome, and degenerative change at the radiocarpal joint in the right wrist-the examiner must opine as to whether it is at least as likely as not that the disorder is related to or had its onset during service. If the examiner finds that Dr. Voytik's December 2008 diagnoses of bilateral carpal tunnel syndrome and cubital tunnel syndrome, or the VA clinician's September 2014 x-ray findings of slight negative ulnar variance and mild degenerative change at the radiocarpal joint in the right wrist, are inaccurate, then the examiner should explain why. In offering these opinions, the examiner should consider the following documents: * The Veteran's April 2012 testimony that she injured her wrists by falling on them while working in the mess hall in service, and has had trouble with them ever since. See transcript, p. 3. * The Veteran's September 1982 service treatment record documenting that she "works in [the] mess hall and she slid and fell on [her] back. [The patient] states she also may have hurt [her] wrist." The clinician diagnosed musculoskeletal strain with secondary inflammation and pain, although it is ambiguous whether that diagnosis applies to the back alone, or to the back and wrist(s). * The Veteran's September 1983 Report of Medical Examination at separation from service, wherein a clinician found that the Veteran's upper extremities and other musculoskeletal systems were normal. * The Veteran's September 1983 Report of Medical History at separation from service, wherein the Veteran reported that she had no arthritis, rheumatism, or bursitis; no bone, joint, or other deformity; and no neuritis. * Dr. Voytik's December 2008 diagnosis of bilateral carpal tunnel syndrome and cubital tunnel syndrome. * A September 2014 VA physician's finding that x-rays were negative for the left wrist, and showed slight negative ulnar variance and mild degenerative change at the radiocarpal joint in the right wrist. The examiner should give a reasoned explanation for all opinions provided. If the examiner is unable to provide a medical opinion, then he or she should provide a statement as to whether there is any 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. All findings and conclusions should be set forth in a legible report. 4. Then readjudicate the appeal of the issue of entitlement to service connection for a bilateral wrist disorder. If the claim remains denied, issue a supplemental statement of the case to the Veteran and her representative and provide an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ STEVEN D. REISS 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).