Citation Nr: 1756471 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-09 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a bilateral hand disability, to include bilateral carpel tunnel syndrome, and trigger fingers. 3. Entitlement to service connection for a right shoulder disability. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Coast Guard from May 1991 to March 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference in November 2016. The transcript of the hearing has been associated with the claims file. The Board has expanded the claim of service connection for bilateral carpal tunnel syndrome to one for service connection for a bilateral hand disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The change is also reflected on the title page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the delay, further development is necessary prior to the adjudication of the issues on appeal. The Veteran is seeking service connection for a low back disability, bilateral hand disability, and right shoulder disability. First addressing the Veteran's claim for service connection for a low back disability, the evidence of record includes a March 2012 VA examination report in which the examiner noted a diagnosis of mild degenerative changes and opined that the Veteran's low back disability is not at least as likely as not service-related. The examiner reasoned that the Veteran had very minor complaints with very transient flares without significant trauma in service. However, the Veteran testified during the November 2016 Board hearing that he had 5000 hours of wave time during service and the impact each time the boat came off of a swell or wave affected/aggravated his back low condition. Further, the Veteran clarified that he was not pain free during the March 2012 examination. He was having a good day, but was still experiencing a pain level of 4.5. As the March 2012 VA examiner did not consider all of the Veteran's lay statements or contentions, the Board finds that the examination is inadequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An additional VA examination is necessary. Turning to the Veteran's claim for service connection for a bilateral hand disability, the Veteran testified during the November 2016 Board hearing that his current problems with his hands, including numbness, cramping, and tingling, began in the early 1990's as a result of constantly turning/gripping the helm of the boat wheel and working the throttle back and forth while in heavy surf. The Veteran's symptoms are consistent with the circumstances of his service and while the Veteran is not competent to diagnose carpal tunnel syndrome, he is competent to describe symptoms that he is able to perceive through the use of his senses (including the aforementioned symptoms of swelling, numbness, tingling, and locking). See Layno v. Brown, 6 Vet, App. 465, 469 - 71 (1994). In light of the Veteran's competent report of continuity of symptomatology since service and an in-service injury consistent with his circumstances of service, the Board finds that the threshold of the McLendon standard has been met, and that the Veteran should be afforded a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Lastly, with regard to the Veteran's claim for service connection for a right shoulder disability, the evidence of record includes a March 2012 VA examination report in which the examiner opined that the Veteran's right shoulder disability is not at least as likely as not service related. The examiner reasoned that the claims file did not contain treatment for the Veteran's right shoulder injury for over a decade. However, the March 2012 VA examiner did not consider the Veteran's lay statements concerning aggravation and continuity of symptomatology since service in rendering his opinion. Further, the Veteran testified during the November 2016 Board hearing that he self-treated his right shoulder disability instead of seeking treatment from a physician because he did not want to be prescribed painkillers. Therefore, the Board finds that the March 2012 VA examiner opinion is inadequate to decide the claim. Barr, 21 Vet. App. at 312. An additional VA examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination to determine the nature, etiology, and date of onset of the Veteran's low back disability. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disability, including the Veteran's competent account of his symptoms. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the diagnosed low back disability (mild degenerative changes and lumbar strain) had onset during active service or within one year of the Veteran's separation from active service, or is otherwise related to service? The examiner is asked to specifically discuss the Veteran's contention that he injured his back while shoveling during service, and he continues to experience pain rated as at least a 4.5 out 10. The examiner is also asked to discuss the Veteran's contention that he has a low back disability related to the impact of 5000 hours of wave time/ boating in the surf without shock mitigation seats, 300 of which were severe/heavy surf conditions. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 3. Schedule the Veteran for a VA examination to determine the nature, etiology, and date of onset of any bilateral hand disabilities. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of any identified disability, including the Veteran's competent account of his symptoms. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Please identify all current bilateral hand disabilities, including carpal tunnel syndrome. (b) For each diagnosed bilateral hand disability, is it at least as likely as not (50 percent probability or more) that it had its onset in service, or within one year of his separation from service, or is otherwise related to service? The examiner is asked to specifically discuss the Veteran's contention that his problems with his hands (swelling, locking, cramping, numbness, and tingling) started in the early 1990's during service as a result of constantly turning/gripping the helm of the boat wheel, and working the throttle back and forth while in heavy surf. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 4. Schedule the Veteran for a VA examination to determine the nature, etiology, and date of onset of the Veteran's right shoulder disability. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disability, including the Veteran's competent account of his symptoms. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the diagnosed right shoulder disability ( rotator cuff impingement with degenerative changes, muscle spasm, rotator cuff strain) had onset during active service or within one year of the Veteran's separation from active service, or is otherwise related to service? The examiner is asked to specifically discuss the Veteran's report of continuity of symptomatology since service and the Veteran's contention that he has a right shoulder disability related to multiple in service incidents including: (1) an incident in which he slipped and grabbed the lifeline, pulled his right shoulder, and heard a "pop" and (2) an incident in which his right arm was caught in the wheel helm. The examiner is also asked to discuss the impact of the Veteran continuing to work as a Coast Guard after the aforementioned injuries. The examiner should note that the Veteran testified during the November 2016 Board hearing that he self-treated his right shoulder and did not seek treatment because he did not want to be prescribed painkillers. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 5. After completing the requested actions and any additional action deemed warranted, the AOJ should readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). _________________________________________________ S.C KREMBS 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).