Citation Nr: 1708455 Decision Date: 03/20/17 Archive Date: 04/03/17 DOCKET NO. 12-16 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for residuals of a right hand injury. 2. Entitlement to service connection for arthritis of the right hand, claimed as secondary to service-connected residuals of a right hand injury. 3. Entitlement to service connection for right hand carpal tunnel syndrome, claimed as secondary to service-connected residuals of a right hand injury. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1975 to March 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The record before the Board consists of the Veteran's electronic records located within the Veterans Benefits Management System (VBMS) and Virtual VA. In October 2014, the Board denied service connection for a dental disability and pointed out that while the ROs adjudicate claims for service connection for dental claims, VA Medical Centers adjudicate claims for dental outpatient treatment. In its decision, the Board referred the issue of entitlement to VA outpatient dental treatment to the RO for further referral to the appropriate VA medical facility. See 38 C.F.R. § 17.161 (2016). It is unclear from the record whether this has been accomplished and the Board once again refers this issue. REMAND In October 2014, the Board remanded the issues of an increased rating for residuals of a right hand injury and entitlement to service connection for arthritis of the right hand, as due to residuals of a right hand injury. The Board instructed the RO to ensure the Veteran was provided with a VA examination to assess the current severity of the residuals of his right hand injury and to obtain a medical opinion as to the etiology of any right hand arthritis found. The Board's remand directives specifically instructed the examiner that if no arthritis was found, he or she must reconcile this finding with an August 2009 private medical note of record, which documented mild degenerative changes in the bilateral hands. The Veteran attended a May 2015 VA examination and the examiner reviewed a January 2010 VA radiographic imaging report, which did not demonstrate any degenerative or arthritic changes in the Veteran's right hand. The examiner found it was less likely than not that any arthritis was due to residuals of a right hand injury, noting that it had been over 30 years since service and no degenerative joint disease was found on x-rays taken in 2009 or 2010. Given that the examiner failed to discuss the August 2009 private medical record documenting mild degenerative changes in the right hand, VA requested an addendum opinion. In a July 2015 addendum opinion, the examiner indicated that because he was unable to locate the August 2009 private medical report in the Veteran's file, he could not provide an addendum opinion taking into account this information. The Board has reviewed the claims file and can confirm that the referenced August 2009 private medical report is in the Veteran's electronic claims file, located in VBMS with a receipt date of September 14, 2009. Based on the foregoing, the Board finds a remand is required to obtain updated current radiological imaging of the Veteran's right hand and to obtain a new medical opinion. In its October 2014 decision, the Board also denied service connection for bilateral carpal tunnel syndrome, and the Veteran appealed this denial to the Court of Appeals for Veterans' Claims (Court). In a May 2016 Memorandum Decision, the Court found that the Board erred by only considering service connection for carpal tunnel syndrome on a direct basis and that VA should have considered whether the Veteran's carpal tunnel syndrome was caused or aggravated by his service-connected residuals of a right hand injury. In footnote three of the Memorandum Decision, the Court noted that although the Board denied the Veteran's claim for bilateral carpal tunnel syndrome, the Veteran was now only contesting the denial of his right hand carpal tunnel syndrome. Accordingly, that portion of the October 2014 Board decision was vacated and remanded by the Court with instructions to provide the Veteran with an examination to determine whether his right hand carpal tunnel syndrome was secondary to his service-connected residuals of a right hand injury. Given that the service connection claims are inextricably intertwined with the Veteran's increased rating claim on appeal, this issue must also be remanded so that the claims may be decided together. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). While the claims are in remand status, all outstanding VA treatment records must also be obtained and associated with the evidence of record before the Board. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the evidence of record before the Board. 2. Arrange for the Veteran to be scheduled for the appropriate VA hand and neurological examinations to determine the etiology of any right hand arthritis and right hand carpal tunnel syndrome found. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed, to include x-rays. If there is no evidence of degenerative changes on x-rays, this finding must be reconciled with the August 2009 private medical report of record noting bilateral degenerative changes in the hands, which is located in VBMS with a receipt date of September 14, 2009. Thereafter, the examiner is requested to provide the following opinions: * Whether there is a 50 percent or better probability that any diagnosed right hand arthritis was caused by residuals of a right hand injury. * Whether there is a 50 percent or better probability that any diagnosed right hand arthritis was aggravated by residuals of a right hand injury. * Whether there is a 50 percent or better probability that any diagnosed right hand carpal tunnel syndrome was caused by residuals of a right hand injury. * Whether there is a 50 percent or better probability that any diagnosed right hand carpal tunnel syndrome was aggravated by residuals of a right hand injury. If, and only if, the examiner finds that any right hand arthritis or right hand carpal tunnel syndrome IS NOT caused or aggravated by the Veteran's service-connected residuals of a right hand injury, the examiner must attempt to distinguish symptoms attributable to the Veteran's service-connected and nonservice-connected disabilities. A complete rationale for all opinions rendered must be provided. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. 3. The Veteran must be notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2016). In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. 4. Then, the Veteran's claims must be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. 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). _________________________________________________ MICHAEL MARTIN 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) (2016).