Citation Nr: 21063683 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-29 520 DATE: October 15, 2021 REMANDED Service connection for residuals of a right forearm gunshot wound is remanded. Service connection for a right hand disorder other than boxer's fracture is remanded. Service connection for lumbar degenerative disc disease is remanded. Service connection for lumbar radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1972 to June 1975 and from May 1976 to January 1980, including service in the Republic of Vietnam. This matter is on appeal from an October 2014 rating decision. In November 2019, the Veteran withdrew his request for a hearing. The matter was previously remanded in February 2020. The Veteran has alleged entitlement to TDIU based on disorders for which service connection was awarded. The Board cannot at this time assume jurisdiction over the Veteran's TDIU claim because there are no rating claims on appeal. Rather, that TDIU claim will be adjudicated in the Veteran's separate AMA appeal. 1. Service connection for residuals of a right forearm gunshot wound is remanded. The Veteran's June 1972 report of medical examination, taken at his entrance into active service, indicates that the Veteran experienced a "gunshot wound 18 yrs old in 1972." Per this report, "some pellets remain" but there are "no sequelae" and the Veteran is "fine now." In a September 2014 VA 27-0820, the Veteran indicates that he is seeking service connection for "gunshot wound to right forearm." Since this disorder was noted on entry, the presumption of soundness is rebutted. 38 C.F.R. § 3.304(b). To trigger the presumption of aggravation, the Veteran must show that it is at least as likely as not there was an increase in disability during such service. 38 C.F.R. § 3.306(a). If the presumption of aggravation arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." Id. This requires the government to show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. Cotant v. Principi, 17 Vet. App. 116, 13032 (2003); 38 C.F.R. § 3.306(b). The prior examination does not specifically address whether residuals of a gunshot wound to the right forearm constitutes a current disorder. A new examination is required, as well as an opinion addressing whether there was an increase in this disability during service. 2. Service connection for a right hand disorder other than boxer's fracture is remanded. In a January 2020 statement, the Veteran argues that his "wrist pain and numbness ... flares when his service-connected boxer's fracture flares." Alternatively, the Veteran argues that his right hand disorder was aggravated by the right forearm gunshot wound. An examination was not previously obtained regarding the Veteran's right hand disorder. Remand is required. 3. Service connection for lumbar degenerative disc disease is remanded. In an August 2014 statement, the Veteran describes how his gunshot wound has been aggravated by military service and "causes severe lower back pain next to [his] spinal column that pinches a nerve at times." He reiterates this contention in a September 2014 statement. The March 2020 VA medical opinion does not specifically address these contentions. A remand is required. 4. Service connection for lumbar radiculopathy is remanded. As noted, the August 2014 statement indicates that the Veteran's low back disorder "pinches a nerve at times." In light of the development ordered for the above disorders, a decision by the Board on the Veteran's lumbar radiculopathy claim would at this point be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Additionally, on remand the RO should obtain all relevant VA treatment records dated from May 2021 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all VA treatment records from May 2021 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, provide an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) and obtain a medical opinion regarding the nature and etiology of any residuals of a right forearm gunshot wound. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any residuals of a right forearm gunshot wound. (b.) Whether it is at least as likely as not that there was an increase in residuals of a right forearm gunshot wound during service. (c.) If "yes" to question 2(b), is there clear and unmistakable evidence that the worsening during service was due to the natural progression of the disease? (d.) If "no" to question 2(b), is it as least as likely as not that residuals of a right forearm gunshot wound were aggravated by service? The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 3. After obtaining any additional records to the extent possible, provide an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) and obtain a medical opinion regarding the nature, onset and etiology of any right hand impairment. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any right hand disorder. In rendering this opinion, the examiner should consider the Veteran's testimony that he has carpal tunnel syndrome and the April 2020 VA medical record indicating hand numbness. (b.) Whether it is at least as likely as not that any right hand disorder was incurred in the Veteran's service. (c.) Whether the Veteran has any right hand disorder that is proximately due to residuals of right forearm gunshot wound or boxer's fracture. (d.) Whether the Veteran has any right hand disorder that was aggravated by residuals of right forearm gunshot wound or boxer's fracture. (e.) If the Veteran does not have a current diagnosis for right hand disorder, is the Veteran's right hand disorder condition characterized by pain or functional impairment? If yes, does the Veteran's right hand pain reach the level of functional impairment of earning capacity, and if so: (i) Is it at least as likely as not that any right hand pain that reaches the level of functional impairment of earning capacity was incurred in the Veteran's service; (ii) Is it at least as likely as not that any right hand pain that reaches the level of functional impairment of earning capacity is proximately due to residuals of right forearm gunshot wound or boxer's fracture; and (iii) Is it at least as likely as not that any right hand pain that reaches the level of functional impairment of earning capacity was aggravated by residuals of right forearm gunshot wound or boxer's fracture. In rendering these opinions, the examiner should consider the January 2020 attorney statement describing the potential relationship between the Veteran's right hand disorder, boxer's fracture, and residuals of a right forearm gunshot wound. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 4. After obtaining any additional records to the extent possible, provide an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) and obtain a medical opinion regarding the nature, onset and etiology of any low back problems. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has low back impairment. (b.) Whether it is at least as likely as not that any low back impairment was incurred in service. (c.) Whether the Veteran has any low back impairment that is proximately due to the Veteran's residuals of right forearm gunshot wound or boxer's fracture. (d.) Whether the Veteran has low back impairment that was aggravated by the Veteran's residuals of right forearm gunshot wound or boxer's fracture. (e.) Whether the Veteran has any lumbar radiculopathy that is proximately due to the Veteran's lumbar degenerative disc disease. (f.) Whether the Veteran has any lumbar radiculopathy that was aggravated by the Veteran's lumbar degenerative disc disease. In rendering these opinions, the examiner should consider the August 2014 and September 2014 statements in which the Veteran describes the potential relationship between his gunshot wound and back disorder. The examiner should also consider prior VA medical records indicating diagnosis and treatment of lumbar degenerative disc disease and lumbar radiculopathy. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cannon, Brian 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.