Citation Nr: 18146203 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-18 515A DATE: October 30, 2018 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for bilateral carpal tunnel syndrome (CTS) is remanded. Entitlement to rating higher than 40 percent prior to February 1, 1999, and 60 percent since, for low back pain with radiculopathy, status post discectomy and laminectomy, is remanded. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. PROCEDURAL CONSIDERATIONS The Veteran had active military service from December 1967 to December 1971 and July 1973 to March 1990, including service in the Republic of Vietnam. This matter initially came to the Board of Veterans’ Appeals (Board) on appeal from September 1993 and November 1994 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The RO in July 2014 adjudicated the claim for service connection for a cervical spine disability as a petition to reopen and certified this claim as such to the Board for review. See Certification of Appeal dated in October 2015. However, in November 2002, the Board remanded the issue of service connection for cervical spine disability as well as the issues regarding service connection for bilateral CTS and entitlement to higher rating for the low back disability. The case was not returned to the Board for adjudication nor did the RO readjudicate the issues to completion. Therefore, this case has been open since the Veteran’s claim for benefits in October 1992. The Board will review the issue of service connection for cervical spine disability on a de novo basis and remand this claim and as well as the issues of service connection for bilateral CTS and entitlement to higher rating for the low back disability for development requested in the 2002 remand. The Board also notes that the Veteran requested a hearing before the Board in the March 2015 substantive appeal for service connection for a cervical spine disability. It does not appear that a hearing was scheduled. However, since then, the Veteran was given a chance for another hearing. He was advised that he had the right to a new Board hearing because the Veterans Law Judge (VLJ) presiding over his August 2001 hearing is no longer employed by the Board. The Veteran was advised that if a response was not received within 30 days it would be assumed that he did not want another hearing and that the Board would proceed accordingly. No response has been received. As such, the appeal has been reassigned to the undersigned VLJ. Finally, in the November 2002 remand, the Board found that the issue of entitlement to extraschedular consideration for a TDIU had been raised by the record. However, the Veteran now meets the schedular requirements for a TDIU. In light of the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board has considered the TDIU claim as part of his pending increased rating claim, and is listing the raised TDIU claim as an issue on appeal. Finally, the record indicates that the Veteran received VA vocational rehabilitation services. See January 1996 application for vocational rehabilitation benefits. Any records associated with this training should be associated with the VBMS folders. REASONS FOR REMAND The Board remanded for updated VA examinations and opinions. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A new examination(s) and opinions are needed to adjudicate the claims. The matters are REMANDED for the following action: 1. Send the Veteran a VCAA letter addressing TDIU claims. 2. Make arrangements to obtain the Veteran’s VA Vocational Rehabilitation records. 3. Obtain any updated treatment records of the Veteran and associate them with the record to include complete VA treatment records and associate them with the Veterans Benefits Management System (VBMS) and Virtual VA e-folders. 4. The RO should obtain from the Veteran a full educational, vocational and occupational history, to include periods of unemployment or less than full time employment. Specifically, the RO should obtain from the Veteran information concerning his current employment. With regards to any extended periods of employment, the Veteran should be requested to provide the approximate dates of any time lost, sick leave used, and factors that may or may not have led to the Veteran having been placed into a non-pay status. The Veteran’s employment records for any extended period of employment should be obtained in the event the Veteran has alleged lost time, sick leave used and other factors that may or may not have led to his having been placed into a non-pay status. When the above development has been completed, the Veteran should be provided with a VA neurological/orthopedic examination(s) in order to: (1) both assess the severity and determine the impact of the Veteran’s service-connected low back disability on his ability to work; and (2) determine the nature and etiology of the Veteran’s bilateral carpal tunnel disorder and cervical spine disorder. All necessary diagnostic testing and evaluation should be performed, and all clinical findings reported in detail. If possible, the appropriate Disability Benefits Questionnaire (DBQ) should be completed for this disability. Lumbar spine disability Regarding the Veteran’s service-connected back disorder, along with the examination, a list of medication should be elicited from the Veteran, along with any claimed side effects, such as drowsiness or memory loss, and the examiner(s) should comment on whether any such complaints are medically recognized side effects of such medication. Cervical spine disability With respect to the cervical spine, the examiner should provide opinions on the following: (a) Is it at least as likely as not (i.e., 50% or greater probability) that the Veteran’s cervical spine disorder had its clinical onset during active service or is related to any incident of service? In providing this opinion, the examiner must consider and address the service treatment records showing the Veteran’s 1983 motor vehicle accident, his 1985 motor cycle accident, or treatment for neck pain in January 1982? In offering this assessment, the examiner should comment on the Veteran’s April 1992 and May 1997 injuries at the work place. (b) Is it at least as likely as not (i.e., 50% or greater probability) that the Veteran’s cervical spine disorder was caused by his service-connected low back disability? (c) Is it at least as likely as not (i.e., 50% or greater probability) that the Veteran’s cervical spine disorder was aggravated by (meaning chronically worsened) by his service-connected low back disability? A rationale must be provided for the medical opinion. Bilateral carpel tunnel syndrome With respect to the Veteran’s bilateral carpal tunnel syndrome (see October 1993 EMG report), the examiner should provide opinions on the following: (a) Is it at least as likely as not (i.e., 50% or greater probability) that the Veteran’s bilateral carpal tunnel syndrome had its clinical onset during active service or is related to any incident of service? In providing this opinion, the examiner must consider and address the service treatment records showing the Veteran’s 1983 motor vehicle accident, his 1985 motor cycle accident, or treatment for neck pain in January 1982? In offering this assessment, the examiner should comment on the Veteran’s April 1992 and May 1997 injuries at the work place. (b) Is it at least as likely as not (i.e., 50% or greater probability) that the Veteran’s bilateral carpal tunnel syndrome was caused by his service-connected bilateral wrist arthritis? (c) Is it at least as likely as not (i.e., 50% or greater probability) that the Veteran’s bilateral carpal tunnel syndrome was aggravated by (meaning chronically worsened) by his service-connected bilateral wrist arthritis? A rationale must be provided for the medical opinion. 4. After undertaking any other development deemed appropriate, re-adjudicate the issue on appeal. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.D. Jackson, Counsel