Citation Nr: 21061254 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 18-42 925 DATE: October 1, 2021 REMANDED Entitlement to a rating in excess of 30 percent for left upper extremity thoracic outlet syndrome (TOS) is remanded. REASONS FOR REMAND This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Board issued a decision denying the Veteran's claims. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2021 Order, the Court vacated and remanded the Board's decision for compliance with the instructions in the Joint Motion for a Remand. Based upon its latest review, the Board has determined that the Veteran's claim for a higher TOS rating must be remanded to afford the Veteran a new VA examination to clarify the nature and extent of the Veteran's disability. The first VA examination for TOS occurred before the filing date of the Veteran's current claim. In the May 2016 VA examination, the examiner determined that TOS caused moderate incomplete paralysis in the left upper, left middle, and left lower radicular nerve groups. The disability did not affect other upper extremity nerves such as the median nerve. In the latest VA examination, May 2017, the VA examiner determined that the Veteran had mild, incomplete paralysis of the left radial (musculospiral) nerve; mild, incomplete paralysis of the left median nerve; moderate, incomplete paralysis of the left ulnar nerve; and moderate, incomplete paralysis of the left long thoracic nerve. The left circumflex nerve, and more crucially, the left upper, the left middle, and the left lower radicular nerve groups are normal. The May 2017 VA examiner never discussed the previous diagnosis of left upper extremity incomplete paralysis of the left upper, left middle, and left lower radicular nerve groups or whether his more recent diagnoses of incomplete paralysis in additional upper extremity nerves represent a change in diagnosis, a progression of the Veteran's prior diagnoses, correction of an error, or the development of a new and separate condition. See 38 C.F.R. § 4.125. Potentially, the Veteran may be entitled to a separate rating for these additional upper extremity nerve symptoms if caused by the Veteran's left upper extremity TOS. Therefore, the Board has determined that a new VA examination is needed with medical opinions to address which nerves are affected by the TOS including reconciliation between the May 2016 VA examination and the May 2017 examination. Before the examination occurs, however, ongoing medical records should be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his thoracic outlet syndrome claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA nerve examination to determine the current symptoms, level of severity, and functional impairment associated with his thoracic outlet syndrome. The claims file should be reviewed by the examiner. The examiner is asked to identify each nerve affected by the Veteran's thoracic outlet syndrome including all symptoms, findings, and functional limitations for each nerve. The examiner is advised that a symptom such as pain, without an accompanying diagnosis of a present disease, can qualify as a disability for VA purposes if it reaches the level of a functional impairment of earning capacity. Further, for any diagnosis reached by the VA examiner, the examiner should explain if it represents a change in diagnosis, a progression of the Veteran's prior diagnoses, correction of an error, or the development of a new and separate condition. See 38 C.F.R. § 4.125. The examiner should specifically comment on the May 2016 and May 2017 VA examinations and if feasible, reconcile, the May 2016 findings of moderate incomplete paralysis in the left middle, and left lower radicular nerve groups but no other nerve involvement with the May 2017 VA examination which found the Veteran had mild, incomplete paralysis of the left radial nerve; mild, incomplete paralysis of the left median nerve; moderate, incomplete paralysis of the left ulnar nerve; and moderate, incomplete paralysis of the left long thoracic nerve but no nerve deficits in any of the radicular nerve groups. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as the Board is precluded from making any medical findings. To the extent possible, the examiner is asked to comment on any functional impairment resulting from service-connected thoracic outlet syndrome. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.