Citation Nr: 1753099 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 10-48 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for right accessory nerve injury and hand numbness, including as secondary to a service-connected right shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. G. Perkins, Associate Counsel INTRODUCTION The Veteran served on active duty as a midshipman with the Naval Academy from June 1995 to May 1999 and served on active duty with the Navy from May 1999 to June 2009. See 38 C.F.R. § 3.6(b)(4)(2017). This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In January 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. The matter was before the Board in April 2014 and May 2017 and remanded 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 The Veteran is seeking service connection for right accessory nerve injury and hand numbness, including as secondary to a service-connected right shoulder disability. Due to a failure to comply with the previous remand instructions, the claim must be remanded again before a final decision can be made. See Stegall v. West, 11 Vet. App. 268 (1998). In the May 2017 remand, the Board directed the AOJ to schedule the Veteran for an electromyogram (EMG) and then a VA examination. The EMG and subsequent VA examination is necessary to decide the claim because the May 2016 VA examiner believed that the Veteran's current hand numbness was not the result of service, but rather carpal tunnel syndrome, but needed an EMG to be done on the Veteran to confirm his diagnosis. VA made multiple attempts without success to reach the Veteran to schedule the EMG. However, in the May 2017 remand, the Board found that the Veteran made reasonable attempts to communicate to VA in effort to schedule the EMG. Thus, the claim was remanded back to the AOJ to schedule the Veteran for an EMG and then a VA examination. Despite the Board's specific instruction, it does not appear that any attempt was made to schedule the EMG after the May 2017 Board remand. Regardless of what previous attempts were made in 2016 to schedule the Veteran for an EMG, this remand is directing the AOJ to ensure compliance with the instructions in this remand. See Stegall supra. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for electromyogram (EMG) as ordered by the May 2016 VA examiner. When scheduling the Veteran for his EMG, the RO should take into consideration that the Veteran may not have immediate access to a telephone. The AOJ should consider whether contact should be established via telephone or in writing, or both. The AOJ must document all attempted contact with the Veteran regarding EMG appointment availability, including times when the Veteran contacts the VA to provide his appointment availability. 2. After completion of the foregoing, schedule the Veteran for a supplemental VA examination, with an appropriate examiner who is different from the May 2017 examiner to determine the nature, extent and etiology of the Veteran's right accessory nerve injury and hand numbness. The claims file and all pertinent records, to include a full copy of this Remand, must be made available to the examiner. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. Based on the examination and review of the record, the examiner is requested to provide the following information: (a) Does the Veteran have a currently diagnosed right hand condition(s)? (b) Is it at least as likely as not (i.e. probability of 50 percent or greater) that any currently diagnosed right hand condition(s) is related to the Veteran's active military service, including his September 1996 right shoulder surgery? (c) If the answer to (b) is "no," is it at least as likely as not (i.e. probability of 50 percent or greater) that any currently diagnosed right hand condition(s) was caused by the Veteran's service-connected right shoulder disability? (d) If the answer to (c) is "no," is it at least as likely as not (i.e. probability of 50 percent or greater) that any currently diagnosed right hand condition(s) was aggravated by the Veteran's service-connected right shoulder disability? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. The VA examiner is requested to provide a thorough rationale for all opinions provided. In providing these opinions, the examiner should address the significance of the Veteran's September 1996 right shoulder surgery, the Veteran's chronic complaints of right hand numbness from October 1996 to the present, the numerous findings of an accessory nerve injury in the record, the Veteran's statements that his right hand numbness began after his in-service right shoulder surgery, and the Veteran's service-connection for his right shoulder condition in April 2009. Note: If the examiner concludes that the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why this opinion would be speculative and what, if any, additional evidence would permit such an opinion to be made. 4. After ensuring completion of the above, readjudicate the issue on appeal. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. 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. §§ 5109B, 7112 (2012). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).