Citation Nr: 1718409 Decision Date: 05/25/17 Archive Date: 06/05/17 DOCKET NO. 13-04 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a left wrist neurological disorder, to include cubital tunnel syndrome and carpal tunnel syndrome, and to include as secondary to a service-connected disability. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Veteran, Veteran's spouse ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1973 to February 1977. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office. The Veteran was afforded a Board hearing in March 2014 that was presided over by a Veterans Law Judge who is no longer employed by the Board. In July 2016, the Board sent the Veteran a letter that provided him the opportunity to testify at another hearing. The Veteran responded by letter dated in July 2016 that he does not wish for another hearing pertaining to the issue on appeal. As discussed by the Board in its October 2015 remand, in a February 2015 Appellant's Brief, the Veteran's representative stated that "the Board should find [the Veteran] is entitled to a separate rating for [left wrist] arthritis." In this regard, the Board notes that the left wrist appeal which has been perfected has been specifically adjudicated as a neurological disorder, not an orthopedic disorder. The claim on appeal arose from an August 2011 claim in which the Veteran requested an increased rating for multiple disabilities, including his left wrist disability. A November 2011 rating decision denied an increased rating for the left wrist disability, which was evaluated under an orthopedic diagnostic code. The same rating decision deferred adjudication of claimed left wrist neurological symptoms, and that claim was subsequently denied in a February 2012 rating decision. The Veteran did not file a notice of disagreement as to the rating assigned for his left wrist disability in the November 2011 rating decision, and the March 2012 notice of disagreement specifically addressed disagreement with the left wrist neurological claim, not the previous increased rating claim. Accordingly, the Board finds that the claim on appeal is exclusively for a left wrist neurological disorder, and the Board does not have jurisdiction over a claim for a left wrist orthopedic disorder, to specifically include arthritis. In addition, as discussed by the Board in its October 2015 remand, the November 2011 rating decision noted the presence of arthritis in the Veteran's left wrist in conjunction with the left wrist increased rating claim. The Veteran is currently receiving a 10 percent rating for residual, fracture of the left navicular with non-union, under 38 C.F.R. § 4.71a , Diagnostic Code 5215, effective July 1, 1980. Accordingly, the Veteran is already receiving a compensable rating for left wrist limitation of motion. As such, a separate rating for arthritis would not be warranted for arthritis in the same joint. 38 C.F.R. §§ 4.14 , 4.71a, Diagnostic Codes 5010, 5003 (2015). For this reason, without making a determination as to whether the February 2015 Appellant's Brief constitutes an informal claim for service connection for left wrist arthritis, the Board again declines to refer any such claimed issue at this time. In October 2015, the Board granted entitlement to service connection for a neck disability and a back disability, and remanded the issue on appeal for further development, specifically to provide the Veteran with a VA examination regarding the Veteran's left wrist neurological disorder. The Veteran was afforded a VA examination in December 2015, and the case was returned to the Board for further appellate proceedings. In October 2016, the Board requested an independent outside medical expert opinion (OMO) from a private hand surgeon, and such an opinion was obtained in October 2016. In January 2017, the Board requested an addendum opinion from the hand surgeon that provided the October 2016 OMO, and such an addendum opinion was obtained in January 2017. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he has a left wrist neurological disorder that is related to an in-service injury or is secondary to a service-connected disability. He is currently service-connected for residuals of a fracture of the left navicular, left forearm scar, extension contracture of the left fifth digit, and a neck disability. He has reported that his neurological symptoms began in service and have continued since service. The Veteran has been diagnosed with cubital tunnel syndrome, such as in the September 2012 VA examination. An April 2014 private medical letter from Dr. M. J. states that the Veteran's numbness in the left arm could easily be due to his neck injury, and that an EMG would determine whether the numbness came from a cervical nerve root source. A February 2016 VA EMG of the left upper extremity apparently showed carpal tunnel syndrome. However, an October 2016 OMO stated that the EMG did not confirm carpal tunnel syndrome. VA treatment records from February 2016 to present are outstanding and may provide information as to whether the Veteran has a confirmed diagnosis of left carpal tunnel syndrome. Therefore, such records should be obtained. In October 2015, the Board granted service connection for the neck disability and remanded the case and directed the AOJ to afford the Veteran a VA examination to determine whether the Veteran's left wrist neurological disorder, to include cubital tunnel syndrome, is related to service or secondary to a service-connected disability. The AOJ afforded the Veteran a VA examination in December 2015, in which the examiner reiterated the September 2012 VA examiner's rationale as to why the Veteran's cubital tunnel syndrome is not related to an in-service stabbing, and the December 2015 VA examiner further explained that the left cubital tunnel syndrome would originate from pathology at the level of the left elbow, and that there is no record of an injury to the left elbow. The December 2015 examiner then noted that the Veteran reported that he uses both hands and upper extremities frequently using tools in his post-service employment. However, the December 2015 examiner did not explain why this report regarding the Veteran's post-service employment activities was significant, nor did he reconcile his opinion with the Veteran's reports of neurological symptoms that began in service and continued since service. Then, in light of the February 2016 VA EMG of the left upper extremity that apparently showed carpal tunnel syndrome, the Board obtained an OMO in October 2016 from a hand surgeon, Dr. I. C. However, Dr. I. C. stated that the VA EMG did not confirm carpal tunnel syndrome, and that the Veteran's reported history of symptoms are consistent with cubital tunnel, Then Dr. I. C. then apparently provided inconsistent statements, stating that the Veteran did have carpal tunnel syndrome. She stated that his carpal tunnel syndrome was not related to his post-service employment activities. She then provided general medical information regarding carpal tunnel syndrome, but did not explain why this information was significant in the Veteran's case, particularly given the Veteran's report of continuing symptoms since service. Further, Dr. I. C. provided no rationale as to whether the Veteran's neck disability caused or aggravated a neurological disorder. Given the above evidence, further medical inquiry is required. First, it is unclear whether the Veteran has carpal tunnel syndrome. Second, it is still unclear whether the Veteran has a left upper extremity neurological disorder is caused or aggravated by the Veteran's service-connected neck disability. Third, it is unclear whether any carpal tunnel syndrome began in service. Thus, the Veteran should be afforded a VA examination to determine the nature and etiology the Veteran's left wrist neurological disorder, to include as secondary to a service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he submit or authorize the release of any outstanding non-VA treatment records relevant to left upper extremity neurological disorder. Attempts should be made to obtain identified records. All attempts to fulfill this development should be documented in the claims file. 2. Obtain all outstanding relevant VA treatment records, to include records from January 2013 to present. 3. After completing the above development, obtain a VA examination with a physician to determine the nature and etiology of a left upper extremity neurological disorder. Make the claims file available to the examiner for review of the case. After performing all necessary testing and reviewing the records, the examiner is asked to address the following: (a) The nature and diagnosis(es) of the Veteran's left upper extremity neurological disorder(s), such as cubital tunnel syndrome. The examiner is asked to also address whether the Veteran has left carpal tunnel syndrome. The examiner's attention is invited to a February 2016 VA EMG which apparently showed left carpal tunnel syndrome; but, the October 2016 private outside expert medical opinion by Dr. I. C. stated that the EMG/ NCS did not confirm carpal tunnel and that the Veteran's symptoms are consistent with cubital tunnel. (b) Regarding each of the Veteran's current left upper extremity neurological disorder(s), provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that each such disorder manifested in service or is otherwise etiologically related to service, specifically to include any of the following: (i) The Veteran's in service stabbing, or (ii) The Veteran's in-service left radius fracture, or (iii) The Veteran's in service neck injury in a June 1976 fall. (c) If any of the above left upper extremity neurological disorder(s) is not related to service, provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that such disorder was caused by any of the following: (iv) the service-connected residuals the in-service stabbing or residuals of the in-service left radius fracture (i.e., residuals of a fracture of the left navicular, left forearm scar, and extension contracture of the left fifth digit), or (v) the service-connected neck disability. (d) If any of the above left upper extremity neurological disorder(s) is not related to service and was not caused by a service-connected disability, provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that such disorder was aggravated (i.e., chronically worsened) beyond the natural progress by any of the following: (i) the service-connected residuals of the in-service stabbing or residuals of the in-service left radius fracture (i.e., residuals of a fracture of the left navicular, left forearm scar, and extension contracture of the left fifth digit), or (ii) the service-connected neck disability. If aggravation is found, the examiner should address the following medical issues to the extent possible: (b) the baseline manifestations of the neurological disorder found prior to aggravation; and (b) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability. For purposes of the above opinions, the examiner's attention is invited to the following: (a) The April 2014 private medical letter from Dr. M. J., which states that the Veteran's numbness in the left arm could easily be due to his neck injury, and that an EMG would determine whether the numbness came from a cervical nerve root source. (b) In the August 1980 VA examination, the Veteran reported that he has been unable to use his left wrist because of excess pain and that he has had numbness of the left middle fingers since the in-service left forearm fracture injury. (c) In the December 2011 VA examination, the Veteran reported that since his stabbing, he has had numbness and tingling in the left fourth and fifth digits. (d) In the September 2012 VA examination, the Veteran reported that he has experienced numbness distal to the stab wound area in the dorsal forearm to about the ulnar head since the stabbing incident. The Veteran reported fairly complete constant numbness and tingling in the fourth and fifth digits on the left hand as well. (e) The Veteran's and the Veteran's wife's reports in the June 2012 RO hearing that the Veteran's fingers have been numb and tingling since service. Please note that the prior medical opinions regarding this matter have not covered all relevant bases. First, the September 2012 VA examiner stated that the Veteran's symptoms are indicative of cubital tunnel syndrome and are not related the in-service stabbing, but the examiner provided no etiological opinion regarding whether cubital tunnel syndrome is otherwise related to service. Second, the December 2015 examiner then noted that the Veteran reported that he uses both hands and upper extremities frequently using tools in his post-service employment. However, the December 2015 examiner did not explain why this report regarding the Veteran's post-service employment activities was significant, nor did he reconcile his opinion with the Veteran's reports of neurological symptoms that began in service and have continued since service. Third, the October 2016 OMO was internally consistent as to whether the Veteran has carpal tunnel syndrome and the OMO provided no rationale as to whether the Veteran's neck disability caused or aggravated the Veteran's carpal tunnel syndrome. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Thereafter, adjudicate the issue on appeal, and furnish the Veteran and his representative a supplemental statement of the case if the matter is not resolved to the Veteran's satisfaction. Provide an opportunity to respond before the case is returned to the Board. The appellant 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) (2016).