Citation Nr: 1808938 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 09-34 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to compensation for carpal tunnel syndrome, right wrist, under the provisions of 38 U.S.C. § 1151. 2. Entitlement to compensation for carpal tunnel syndrome, left wrist, under the provisions of 38 U.S.C. § 1151. 3. Entitlement to an effective date prior to March 11, 1987 for a 60 percent evaluation for asbestosis with bronchial asthma, and for a total schedular evaluation for psoriatic arthritis prior to April 10, 1987, to include whether a claim submitted in March 1980 or a notice of disagreement following a May 1999 rating decision remain pending. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Banks, Associate Counsel INTRODUCTION The Veteran had active duty from May 1958 to May 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. This appeal was previously before and remanded by the Board for further development in October 2012. The Board notes that the Veteran initially requested Board hearings on his September 2009 and June 2010 VA Form 9, Appeal to Board of Veterans' Appeals forms. However, he subsequently withdrew his requests for hearings. See VA Form 21-4138, Statement in Support of Claim received in January 2018. Thus, no hearing was ever held with regard to the issues on appeal, as reflected above on the title page of this decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran claims entitlement to compensation under 38 U.S.C. § 1151 based on right and left carpal tunnel release procedures that were performed improperly, according to the Veteran, at a VA Medical Center (VAMC) in the 1990s. See VA Form 21-4138, Statement in Support of Claim received in March 2008. The Veteran claims that he subsequently had to have another right and left carpal tunnel release performed. See id. A VA examination opinion on the relevant issues was obtained in June 2016. In the opinion, the examiner wrote that an April 1991 note in the Veteran's medical records indicates that he had a recent right wrist carpal tunnel release performed. However, the examiner did not note his or her review of the actual operative report. This language and the lack of any specific mention of review of the operative report collectively indicates to the Board that the examiner did not review the operative reports or notes from the first right and left carpal tunnel releases that the Veteran's instant claims are predicated on. Additionally, the examiner stated that "no operative reports have been provided by Dr. [J]." See Medical Opinion Disability Benefits Questionnaire dated in June 2016. Dr. [J] was the physician that performed the subsequent carpal tunnel release procedures on the Veteran's right and left wrists. See Surgical Notes dated in February and March 2008 (which can be found in the Medical Treatment Record - Non-Government Facility received in July 2010). The Board's review of the Veteran's claims folder reveals that the operative reports from the first right and left carpal tunnel releases in the 1990s and those from the second right and left carpal tunnel releases in 2008 are documented in and associated with the Veteran's claims file. See id.; Operative Notes dated in February and March 1991 (which can be found in the Medical Treatment Record - Government Facility received in November 2008). These operative reports are each very important pieces of evidence relating to the Veteran's claims of entitlement to compensation under 38 U.S.C. § 1151. As such, they must be reviewed by the VA examiner, and any VA examination opinion must be based upon consideration of those records. The Veteran also claims entitlement to earlier effective dates for his service-connected asbestosis with bronchial asthma and for his total schedular evaluation for psoriatic arthritis. See, e.g., VA Form 21-4138, Statement in Support of Claim received in March 2008. He has specifically claimed that he submitted a claim in March 1980 and a notice of disagreement (NOD) following a May 1999 rating decision that were not acted on by VA (i.e., the RO). In this regard, the Board's review of the Veteran's claims file reveals that VA received a VA Form 21-4138, Statement in Support of Claim from the Veteran in February 1980, and it provides that the Veteran believed that his service-connected nervous condition had increased in severity and was aggravating a skin condition (potentially the psoriasis and/or psoriatic arthritis that was later service-connected, and for which he seeks an earlier effective date as indicated in the instant issue on appeal, as reflected above). A subsequent rating decision issued in June 1980 addressed entitlement to "Paragraph 29 benefits" and an increased evaluation of his service-connected nervous condition. However, no skin disorder was addressed in that decision, nor was psoriatic arthritis. The Board thus finds that the RO should separately adjudicate the issue of an earlier effective date for service connection for psoriatic arthritis after consideration of that February 1980 VA Form 21-4138, Statement in Support of Claim. Adjudication of this claim may affect the underlying earlier effective date claim on appeal; thus, final action on that issue as a whole will be deferred pending the remand development referenced above and directed below. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain copies of any outstanding VA and private records of all evaluations and treatment the Veteran received for his bilateral carpal tunnel syndrome (if any are still outstanding). As needed, signed release forms for private records should be obtained. All requests for records and responses must be associated with the claims folder, pursuant to the provisions of 38 C.F.R. § 3.159(c). 2. Afford the Veteran a VA neurological examination, with an examiner who has reviewed the Veteran's claims file. If an examination is not reasonably feasible, or the Veteran does not report, the claims file should still be furnished to an appropriate examiner for a medical opinion based upon a claims file review. The examiner is requested to provide the following opinion as to bilateral carpal tunnel syndrome: is it at least as likely as not (a 50 percent or greater probability) that the Veteran sustained additional neurological disability of either wrist due to either of the carpal tunnel releases as a result of: a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment, or b) an event not reasonably foreseeable? The examiner is requested to review all pertinent treatment records relating to the surgeries, including any operative reports, in making this opinion. 3. An adjudication must be made on the issue of entitlement to an earlier effective date for the grant of service connection for psoriatic arthritis. The Veteran must be afforded an opportunity to respond. 4. After undertaking the above actions and any other necessary development, the AOJ must readjudicate all of the claims on appeal. If any of the claims remains denied, the Veteran and his representative must be provided with a supplemental statement of the case and afforded an opportunity to respond. The case must then be returned to the Board for further review if necessary. The Veteran has the right to submit additional evidence and argument on this matter. 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). _________________________________________________ A. C. MACKENZIE 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).