Citation Nr: 18149653 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 13-29 917 DATE: November 13, 2018 REMANDED The claim for entitlement to service connection for carpal tunnel syndrome of the right hand, to include as secondary to service-connected cervical spine disability. The claim for entitlement to service connection for carpal tunnel syndrome of the left hand, to include as secondary to service-connected cervical spine disability. The claim for entitlement to a rating greater than 10 percent for left arm radiculopathy associated with cervical spine disability. REASONS FOR REMAND The Veteran served on active duty from May 1990 and September 1990; from November 2001 and July 2002; and from February 2003 to January 2004. The Veteran also had periods of active duty for training (ACDUTRA). This appeal to the Board of Veterans' Appeals (Board) arose from a September 2012 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico denied the Veteran’s claims for service connection for a lumbar spine disability, left carpal tunnel syndrome, right carpal tunnel syndrome, and depressive disorder; and continued a 20 percent rating for diabetes mellitus, as well as 10 percent ratings for hypertension and left arm radiculopathy. In September 2012, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in October 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2013. In April 2015, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript of that hearing is of record. In December 2015, the Board remanded the claims on appeal to the agency of original jurisdiction (AOJ) for further action. In a February 2016 rating decision, the AOJ granted service connection for major depressive disorder. This action resolved the claim for service connection, and the Veteran has not appealed the assigned rating or effective date. However, the AOJ continued to deny the remaining claims, and returned these matters to the Board. This appeal has since been advanced on the Board's docket. See 38 U.S.C. § 7107 (a)(2) and 38 C.F.R. § 20.900(c). Unfortunately, the Board finds that further AOJ action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on the remaining claims on appeal. A remand by the Board confers upon a 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. See Stegall v. West, 11 Vet. App. 268 (1998). Pursuant to the Board’s remand, in April 2016, the Veteran underwent a VA examination for carpel tunnel syndrome, and the VA examiner indicated that a radiculopathy examination was not conducted, but that there was no evidence of incomplete or complete paralysis noted on January 2015 VA examination. The Veteran underwent cervical spine VA examination in June 2017, and the examiner indicated there was no objective evidence of left cervical radiculopathy during physical examination. The examiner, however, did not address the April 2015 nerve conduction test that reflects an increase in severity in his upper left extremity, as requested by the Board. Stegall, supra. Regarding the Veteran’s service connection claims for right and left carpel tunnel syndrome, during the April 2015 Board hearing, the Veteran asserted that the disability is related to service, specifically, accidents and lifting heavy equipment during service, and in the alternative, secondary to his service-connected cervical spine disability. However, in addressing direct service connection, the January 2016 examiner provided a negative nexus based solely on the lack of documented complaints, diagnosis, and treatment in service, without specifically addressing the Veteran’s assertions as to experiencing hand problems in service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (examination inadequate where the examiner relied on the lack of evidence in service treatment records to provide negative opinion). Given the above, the Board finds that the evidence of record is insufficient to resolve the carpel tunnel syndrome claims, and that a remand obtain further medical opinion by an appropriate physician is needed. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination or obtain an opinion in connection with a service connection claim, it must provide or obtain one adequate one for the purpose intended). To this end, the AOJ should arrange to obtain an addendum opinion from the examiner who provided the January 2016 opinion, or, if necessary, from another appropriate physician, based on claims file review (if possible). The AOJ should only arrange for further examination of the Veteran if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion. The Veteran is hereby advised that, failure to report to any scheduled examination(s), without good cause, may result in denial of the claim(s)—in particular, the increased rating claim. See 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. 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 any scheduled examination(s), the AOJ should associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination(s)—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 claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the VA Ponce, Puerto Rico Medical Center (VAMC), and that records dated since January 2016 have been associated with the record; however, records since that time may exist. Hence, the AOJ should request all pertinent VA medical records dated since January 2016.. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claims on appeal (particularly regarding private (non-VA) treatment)), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) clarifying that VA may decide a claim before the expiration of the one-year notice period). 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; 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 compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claims on appeal. Each claim should be adjudicated considering all pertinent evidence, to particularly include all that added to the claims file since the last adjudication—to include evidence added to the claims file post-certification without a waiver, and all evidence received pursuant to actions requested on remand. Also, adjudication of the higher rating claim should include consideration of whether staged rating for the disability—assignment of different ratings for distinct periods of time, based on the facts found—is appropriate. The matters are hereby REMANDED for the following action: 1. Obtain from the Puerto Rico VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran since January 2016. 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 concerning, and, if necessary, authorization to enable VA to obtain, additional evidence pertinent to any remaining claim(s) on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish 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 of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 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 VA neurology examination, by an appropriate medical professional, for evaluation of his left arm radiculopathy. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. All pertinent pathology should be noted in accordance with the current applicable Disability Benefits Questionnaire. The examiner should clearly indicate whether there is incomplete or complete paralysis of the affected nerve and, if such is considered incomplete paralysis, the examiner should describe the severity of the impairment as mild, moderate, or severe. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain an addendum opinion from the examiner who provided the January 2016 opinion. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the claims file, and arrange to obtain an opinion from another appropriate physician based on claims file review (if possible). Only arrange for further examination of the Veteran, by an appropriate physician, if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the addendum opinion/examination report should include discussion of the Veteran’s documented history and assertions. If the Veteran is examined, all indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. After review of all pertinent lay and medical evidence, for carpal tunnel syndrome the physician should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right and left carpel tunnel syndrome had its onset in or is otherwise medically related to service, to specifically include accidents and carrying heavy equipment in service, as alleged. In addressing the above, the physician must consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions, to include the Veteran’s assertions as to in-service events, and as to the nature, onset, and continuity of symptoms. Notably, the absence of documented evidence of in-service injury, or a specific diagnosis and/or associated symptoms in or shortly after service should not, alone, serve as the sole basis for a negative opinion. In this regard, the d, the physician is advised that the Veteran is competent to report his symptoms and history, and all lay assertions in this regard must be considered in formulating the requested opinion. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. Complete, clearly-stated rationale for the conclusions reached, must be provided. 6. If the Veteran fails to report to any scheduled examination(s), associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination(s)—preferably, any notice(s) of examination—sent to him by the pertinent medical facility. 7. To help avoid future remand, ensure that the 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 v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal. If the Veteran fails, without good cause, to report the examination scheduled for evaluation of left arm radiculopathy, in adjudicating the increased rating claim, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicated each claim considering all pertinent evidence (to include all evidence added to the electronic claims file(s) since the last adjudication) and legal authority (to include, for the increased rating claim, consideration of whether staged rating of the disability is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah Campbell