Citation Nr: 20007019 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 15-13 178 DATE: January 28, 2020 REMANDED Entitlement to service connection for a bilateral hand disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from November 1965 to November 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision. A November 2018 Board decision denied service connection for a bilateral hand disability. [The Board also remanded the matters of service connection for bilateral hearing loss and for a bilateral foot disability; those matters are pending additional development at the Agency of Original Jurisdiction (AOJ) and are not currently before the Board.] The Veteran appealed the Board’s November 2018 decision (to the extent it denied service connection for a bilateral hand disability) to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a July 2019 Joint Motion for Partial Remand (JMPR) by the parties. [The parties agreed that the CAVC lacks jurisdiction over the remanded claims.] An August 2019 CAVC Order remanded the matter for compliance with JMPR instructions. Entitlement to service connection for a bilateral hand disability In November 2018, the Board denied the Veteran’s claim on the basis that a chronic bilateral hand disability was not shown. In the July 2019 JMPR, the parties agreed that the Board erred when it failed to consider and discuss several treatment records which suggest that he has relevant diagnoses including bilateral carpal tunnel syndrome (see October 2016 VA occupational therapy record and March 2018 VA plastic surgery clinic record) and osteoarthritis in the distal interphalangeal joints 2 through 4 (see February 2018 VA treatment record). The parties also agreed that VA failed to provide an adequate examination under VA’s duty to assist as the February 2012 VA “examiner failed to address whether [the Veteran’s] alleged bilateral carpal tunnel syndrome could have been caused or aggravated by his use of a cane” for service-connected ankle disabilities, an error which “precludes the Board’s evaluation of [the Veteran’s] disability from being a fully informed one.” The parties agreed that “a new examination is required to adequately describe [the Veteran’s] disability in sufficient detail, including whether [he] has a hand disability that is at least as likely as not caused or aggravated by his use of a cane due to his other service-connected disabilities.” The Board notes that in May 2019 (after the November 2018 Board decision and prior to the July 2019 JMPR), the Veteran was afforded a VA peripheral nerves examination. The examiner was asked to opine whether the Veteran’s bilateral upper extremity carpal tunnel disability was proximately due to his use of a cane or other ambulatory aids. The examiner wrote, “Can speculate, with more evidence on side of NEGATIVE OPINION” (emphasis in original). The Board finds that opinion inadequate for rating purposes as the examiner applied an improper standard of review, and the rationale appears inconsistent. While the examiner found that the Veteran’s peripheral neuropathy was more likely related to his diabetes mellitus (which is not service connected), she did not opine whether the neuropathy was aggravated by his use of a cane, which she acknowledged “can increase pressure in wrist and can lead to [carpal tunnel syndrome].” See El-Amin v. Shinseki, 26 Vet. App. 136, 140-141 (2013). Accordingly, development for an examination to secure an adequate medical advisory opinion in this matter is necessary. A remand is also necessary to ensure compliance with VA’s duty to assist as it appears that pertinent treatment records may be outstanding. The record shows that the Veteran was authorized (and opted-in) to see a private neurologist through the Veteran’s Choice Program. See July 27, 2016 and August 12, 2016 VA treatment records. The record shows that he underwent an EMG nerve conduction study on September 15, 2016, and that he was treated by a Dr. C at the Tallahassee Memorial Healthcare neuroscience center. See September 22, 2016 VA treatment record. The EMG report/findings of such study, and complete records of the Veteran’s Choice Program treatment are not associated with the record and are clearly pertinent evidence in this matter (in determining the nature and etiology of any upper extremity nerve disability). All records of treatment the Veteran has received for a bilateral hand/upper extremity nerve disability must be secured. Notably, VA treatment records are constructively of record. The matter is REMANDED for the following: 1. Secure for the record updated (to the present, those not already associated with the record) complete clinical records of all VA evaluations and treatment the Veteran has received for his hands/upper extremities. Also ask the Veteran to identify all private providers of evaluations and/or treatment he has received for his hands/upper extremity disabilities (records of which are not already in the record), and to submit authorizations for VA to secure for the record complete clinical records of such evaluations and treatment from all providers identified, including specifically from Tallahassee Memorial Healthcare (including Dr. C). Obtain those records. 2. Confirm that the Veteran’s October 2019 request for copies of September 2019 VA audiology and foot examination reports received an appropriate response (the record reflects that action in this matter was initiated, but does not show it was completed). If not, provide the copies of the requested documents. 3. When the development requested above is completed, arrange for the Veteran to be examined by an appropriate clinician to determine the nature and likely etiology of his claimed bilateral hand disability. The entire record (to include this remand and the May 2019 peripheral nerve examination report) must be reviewed by the examiner. The provider should respond to the following: (a) Identify (by diagnosis) each right and left hand disability entity found, or shown by the record during the pendency of this claim. If bilateral carpal tunnel syndrome and osteoarthritis in the distal interphalangeal joints 2 through 4 are not diagnosed, reconcile that conclusion with the clinical diagnoses in the record (noted above). (b) Regarding each hand disability entity diagnosed, opine whether it is at least as likely as not (a 50% or greater probability) that it is etiologically related to the Veteran’s service/events therein? (c) If a diagnosed hand disability is found to not be directly related to the Veteran’s service, opine further whether it is at least as likely as not (a 50% or greater probability) that the disability was caused or aggravated by (increased in severity due to) any of the Veteran’s service-connected disabilities, to include his use of a cane and/or Lofstrand crutches for service-connected ankle disabilities? [The opinion must address aggravation.] (d) If the opinion is to the effect that a service-connected disability (or the assistive devices used for such disabilities) did not cause, but aggravated, a hand disability, specify, to the extent possible, the degree of disability (symptoms/impairment) that resulted from such aggravation. Include rationale with all opinions, citing to supporting factual data and/or medical literature, as deemed appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.