Citation Nr: 1801795 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-17 163 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire THE ISSUE Entitlement to service connection for a left wrist disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Michael Wilson, Counsel INTRODUCTION The Veteran served on active duty from November 1978 to July 1979. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2012 rating decision in which the RO continued to deny a previously denied claim of entitlement to service connection for a left wrist condition. The Veteran filed a notice of disagreement (NOD) in April 2012. A statement of the case (SOC) was issued in March 2014, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2014. In an October 2015 decision, issued by a Veterans Law Judge (VLJ) other than the undersigned, the Board reopened the Veteran's previously denied claim of entitlement to service connection for a left wrist disability, and remanded the reopened claim to the agency of original jurisdiction (AOJ) for additional development. In December 2015, the Veteran requested a Board hearing. After accomplishing further action on remand, the AOJ denied the claim on the merits (as reflected in a June 2016 supplemental SOC (SSOC)). In July 2016, the Veteran testified during a Board videoconference hearing before the undersigned VLJ. A transcript of the hearing is of record. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing system. For reasons expressed below, the claim on appeal is, again, being remanded to the AOJ. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that still further action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In remanding this claim in October 2015, the Board instructed that the Veteran should be afforded a new VA examination in order to assess the nature of any existing left wrist disability, and to obtain VA opinions with respect to whether he had a left wrist disability that clearly and unmistakably preexisted his entry into active service; and if so, whether it was clear and unmistakable that any worsening of the left wrist disability was due to the natural progression of the disability. The Veteran was afforded a new VA examination of the left wrist in December 2015. As for diagnosis, the examiner only identified only a wrist injury," diagnosed in 1979. The examiner opined that it is more likely than not that the Veteran's limitation in supination was related, or caused by, his old injury to the forearm, apparently sustained at the age of 15. The examiner further noted that the wrist injury sustained in service had left no evidence of abnormalities at the level of the wrist that would impede supination of the forearm. Significantly, however, the examiner did not address the specific questions imposed by the Board, several of which intimate a different legal standard-to include with respect to whether the Veteran had a left wrist disability that clearly and unmistakably preexisted his entry into active service, and if so, whether any worsening of the disability was clearly and unmistakably doe to the natural progression of the disability. See Stegall, supra. The examiner also did not offer any explanation for why the injuries sustained prior to and during active service had distinguishable effects. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). Moreover, although the examiner appeared to distinguish the Veteran's apparent wrist injury sustained prior to his entry into active service from the wrist injury sustained during service, this apparent distinction seems to contradict the evidence of record. Most notably, a June 1979 Medical Board Report notes that the left wrist injury sustained on an obstacle course during recruit training was similar in fashion to the injury sustained prior to his entry into active service when he was 16 years old. The Report further notes that the Veteran had intermittent pain, especially with attempted forceful pronation and supination, thereby preventing him from performing his full duty activities as required. Additionally, a November 1978 clinical treatment report indicates that, due to the left wrist injury, the Veteran lacked the last 10 degrees of supination of the left wrist. Thus, based on this evidence, the VA examiner's supposition, that the in-service injury left no evidence of abnormalities at the level of the wrist that would impede supination of the forearm, would appear to be factually incorrect. The Board additionally notes, at this juncture, that the record does not reflect a clear, current diagnosis for the Veteran's left wrist disability. While a May 2009 VA treatment reports indicates that the Veteran had suffered from chronic left wrist pain since his service, and while VA examination reports of record reference in-service wrist injury, a present diagnosis to account for his reported symptoms remains unclear. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Given the foregoing, the Board finds that further remand of this matter is required to afford the Veteran a new VA examination to obtain clear and adequate findings and opinions as to the nature and etiology of currently claimed left wrist disability. See id., at 311. As there is some confusion in the record with respect to the nature of the injury or injuries sustained by the Veteran prior to his entry into active service (i.e., reports of record indicate that the injury was sustained at the age of 15 or 16, or younger, and that the injury was the result of a fall incurred while rock climbing or as a result of a fall from a swing), on remand, the VA examiner should elicit from the Veteran a history of his injury or injuries to the left wrist and/or forearm sustained prior to his entry into active service. Accordingly, the AOJ should arrange for the Veteran to undergo a new VA examination of his left wrist by an appropriate physician. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of his reopened claim. See 38 C.F.R. § 3.655(b) (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the AOJ should associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination-preferably, any notice(s) of examination-sent to him by the pertinent medical facility. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claim file all outstanding, pertinent records. As for VA records, the claims file reflects that the AOJ requested treatment records from the Manchester VA Medical Center (VAMC), and that records from this facility dated through November 2015 are associated with the file; however, more recent records may exist. Hence, the AOJ should obtain all pertinent VA treatment records dated since November 2015. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (to include as regards private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1) (2012); but see also 38 U.S.C. § 5103(b)(3) clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C §§ 5103, 5103A (2012); 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the AOJ should also undertake any other development or notification action deemed warranted prior to adjudicating the remaining matter on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Manchester VAMC (and any associated facility(ies)) all outstanding, pertinent records of evaluation and/or treatment of the Veteran since November 2015. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and, if necessary, authorization to enable VA to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran provide appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a new VA examination by an appropriate physician-preferably, one who has not previously examined him or rendered an opinion in connection with this claim- to obtain information as to the nature and etiology of current left wrist disability. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions. To this end, the physician should elicit from the Veteran a complete history of injury(ies) to the left wrist and/or forearm sustained prior to his entry into active service. All necessary tests and studies should be accomplished (with all findings made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify, and specify a diagnosis for, any left wrist disability(ies) currently present, or present at any point pertinent to the current claim (even if now resolved or asymptomatic). For each such diagnosed left wrist disability, the examiner should provide an opinion, consistent with sound medical principles, as to whether there is clear and unmistakable (undebatable) evidence that (a) such disability existed prior to service entrance, and (b) that the disability was not aggravated (i.e., permanently worsened beyond the natural progression) during or as a result of service. In addressing the above, the examiner must clearly indicate whether any increase in severity of the disability during service was clearly and unmistakably (undebatably) due to the natural progression of the disorder. If the examiner determines that a left wrist disability did not undebatably exist prior to service, he or she should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disability had its onset during, or is otherwise medically related to, the Veteran's military service, to include complaints of recurrent left wrist pain therein. In addressing the above, the examiner must consider and discuss all medical and other objective evidence of record, as well as lay assertions, to include the Veteran's contentions that he did not have left wrist pain prior to his entry into active service, and that he has had left wrist pain ever since his separation from service. Notably, if service incurrence of current left wrist disability is addressed, the absence of evidence of diagnosis of and/or treatment for associated symptoms during and/or shortly after service should not, alone, serve as a sole basis for a negative opinion. In this regard, the examiner is advised that the Veteran is competent to report his symptoms and history, and that lay assertions in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have 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, supra. 6. After accomplishing all requested action, as well as any additional action deemed warranted, readjudicate the claim for service connection for a left wrist disability. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the reopened claim, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate the claim in light of all pertinent evidence (to particularly include that added to the VBMS and/or /Virtual VA (Legacy Content Manager) file(s) since the last adjudication), and all legal authority. 7. If the benefit sought on appeal remains denied, furnish the Veteran and his representative an SSOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).