Citation Nr: 1748554 Decision Date: 10/27/17 Archive Date: 11/03/17 DOCKET NO. 08-37 093A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for bilateral carpal tunnel syndrome, status post carpal tunnel release. REPRESENTATION Appellant represented by: Dan Curry, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and Mr. J.M. ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran had active service from June 1972 to November 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In connection with this appeal, the Veteran and Mr. J.M. testified at a hearing before the undersigned Acting Veterans Law Judge at the RO in April 2011. A transcript of that hearing has been associated with the claims file. This case has previously been before the Board and in a June 2014 decision, the Board denied entitlement to service connection for bilateral carpal tunnel syndrome, status post carpal tunnel release. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2015 Order, the Court granted a Joint Motion (JMR) of the parties and remanded the case to the Board for action consistent with the Joint Motion. The Board remanded these claims in December 2015 for action consistent with the May 2015 JMR. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the May 2015 JMR, the parties found that the Board failed to provide an adequate statement of reasons and bases in the June 2014 decision in which entitlement to service connection for bilateral carpal tunnel syndrome was denied. The JMR shows that the parties agreed that Board failed to adequately consider pertinent medical evidence of record; second, the Board relied on an inadequate November 2011 VA medical opinion; and third, the Board failed to adequately address whether carpal tunnel syndrome qualified as an organic disease of the nervous system for consideration as a chronic disease pursuant to 38 C.F.R. § 3.309(a) (2016). More specifically, the JMR shows that it was agreed that a November 2011 VA medical opinion, it was determined that this opinion was inadequate because the examiner failed to provide a sufficient supporting rationale for the negative conclusion reached, and that the VA examiner failed to consider pertinent medical evidence of record. The parties also agreed that the November 2011 VA opinion, and the Board, should have discussed VA records, dated in May 1980 (showing a history of decreased deep tendon reflexes). Finally, it was agreed that the Board "must consider whether carpal tunnel syndrome is an organic disease of the nervous system and thus should be considered a presumptive condition under § 3.309(a) subject to the rebuttable presumption provisions of § 3.307(d)." Citing 38 C.F.R. § 3.309(a). In December 2015, the Board remanded the claim for action consistent with the May 2015 JMR. Specifically, the Board requested an opinion that addressed the following questions: 1) Whether it is at least as likely as not that the Veteran's carpal tunnel syndrome of either upper extremity had its clinical onset during the Veteran's active duty service; and 2) Whether it is at least as likely as that bilateral carpal tunnel syndrome is "an organic disease of the nervous system." See 38 C.F.R. §§ 3.307, 3.309 (a) (2016)); see also Goodman v. Shulkin, No. 2016-2142 (Fed. Cir. Sept. 18, 2016) (medical professionals may provide opinions as to whether or not certain medical diseases constitute diseases as defined by regulation, in order to match the rating with the disability). In May 2017, the Veteran was afforded a VA examination. The diagnosis was bilateral carpal tunnel syndrome. The examiner noted that the Veteran did not have a diagnosis of carpal tunnel in the military during activity. He had tendonitis. The examiner noted that his current symptoms came from a work-related injury in 1999. The examiner also noted that the Veteran did not find evidence of compensable symptoms within the first year of discharge from the service. These findings were provided in support of the examiner's conclusion that the Veteran's bilateral carpal tunnel syndrome was less likely than not incurred in or caused by service or manifested to a compensable degree within one year of service. The May 2017 VA opinion is inadequate and does not sufficiently address the issues raised in the JMR, as reflected in the December 2015 Board remand. First, the opinions did address whether carpal tunnel syndrome is an organic disease of the nervous system. Second, the opinions were not supported by an adequate rationale. Specifically, the Veteran's medical history, including May 1980 VA treatment records showing decreased deep tendon reflexes, were not discussed in either the opinion or the examination report. The Veteran has the right to compliance with the remand directives as a matter of law. Stegall v. West, 11 Vet. App. (1998). On remand, an adequate opinion must be obtained. The Veteran is advised that it is his responsibility to report for any examination and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2016). Accordingly, the case is REMANDED for the following action: 1. Return the file to the examiner who conducted the May 2017 VA examination. After review of the record, the examiner must provide opinions as to: a) Whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's carpal tunnel syndrome of either upper extremity had its clinical onset during the Veteran's active duty service, to include a discussion of the Veteran's VA treatment records dated in May 1980 documenting a history of decreased deep tendon reflexes, and; b) Whether it is at least as likely as not that the Veteran's bilateral carpal tunnel syndrome is "an organic disease of the nervous system" (see 38 C.F.R. §§ 3.307, 3.309 (2016)). c) If, and only if, the examiner determines that bilateral carpal tunnel syndrome is "an organic disease of the nervous system," an opinion should be provided as to whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's carpal tunnel syndrome of either upper extremity was manifested to a compensable degree within one year of the Veteran's separation from active service (in November 1977). In providing this opinion, the examiner must discuss VA treatment records dated in May 1980, documenting a history of decreased deep tendon reflexes. 2. In the event that the examiner who conducted the Veteran's May 2017 VA examination is not available, schedule the Veteran for an appropriate VA examination with another examiner in order to ascertain the nature and etiology of his bilateral carpal tunnel syndrome. The questions set forth above must be answered. The claims folder should be made available to the examiner. All indicated studies/tests should be performed and all findings should be reported in detail. 3. To help avoid future remand, it must be ensured that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Then, readjudicate the claim of entitlement to service connection for bilateral carpal tunnel syndrome. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case 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 2015). _________________________________________________ T. STEPHEN ECKERMAN Acting 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).