Citation Nr: 21027853 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 15-37 630 DATE: May 7, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to a compensable disability rating prior to July 8, 2019, for incomplete paralysis of the right (dominant) ulnar nerve, in excess of 30 percent from July 8, 2019 to February 23, 2021, and in excess of 40 percent thereafter, is remanded. Entitlement to a compensable disability rating prior to July 8, 2019, for incomplete paralysis of the left (non-dominant) ulnar nerve, in excess of 20 percent from July 8, 2019 to February 23, 2021, and in excess of 30 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1975 to October 1980. These matters come to the Board of Veterans' Appeals (Board) from a December 2012 rating decision which denied entitlement to service connection for a cervical spine disability and continued a noncompensable disability rating for bilateral ulnar neuropathy. In July 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. In May 2019 and November 2020, the Board remanded the matters for further development, to include obtaining outstanding VA treatment records and VA examinations and medical opinions. In an April 2020 rating decision, VA granted increased ratings for right and left upper extremity incomplete paralysis of the ulnar nerve, evaluated at 30 and 20 percent, respectively, effective July 8, 2019. In a March 2021 rating decision, VA granted increased ratings for right and left upper extremity incomplete paralysis of the ulnar nerve, evaluated at 40 and 30 percent, respectively, effective February 23, 2021. As these grants do not represent a maximum grant of the benefits sought on appeal, the increase rating claims remain pending before the Board. The claims of entitlement to service connection for a cervical spine disability and entitlement to increased ratings for right and left upper extremity incomplete paralysis of the ulnar nerve, are remanded. As it pertains to the claim of service connection for a cervical spine disability, evidence indicates that there may be outstanding relevant VA treatment records from the Iowa VAMC dated from 1988 to 1989. In November 2020, the Board remanded the appeal so that these records could be obtained. In November 2020, the Agency of Original Jurisdiction (AOJ) requested these records. A two-page December 2020 response shows one record dated in September 1988. However, upon review, the Board notes that there appear to be pages missing from the Iowa VAMC's response. Specifically, the response consists of "Report Page 1" with the Veteran's identifying information, and "Report Page 3" which documents a missed appointment in September 1988 that was rescheduled for May 1989. "Report Page 2" is not associated with the record, and "Report Page 3" notes that it is page 2 of 39 of the report. As noted in the Board's November 2020 remand, a VA appointment sheet shows the Veteran attended a May 1989 neurosurgery appointment, as well as several other appointments in 1989. As it appears that the 1989 records are still outstanding and may be missing from the Iowa VAMC's December 2020 response, the Board finds that a remand is warranted for an additional attempt to obtain and/or associate these records with the Veteran's claims file. As it pertains to the Veteran's increased rating claims, in November 2020, the Board remanded the claims for a VA examination to assess the severity of the Veteran's bilateral ulnar neuropathy, to include obtaining a medical opinion as to whether more than one nerve and/or a combination of nerve compressions were responsible for the symptomatology associated with the Veteran's service-connected disability. The examiner was directed to obtain an EMG, if necessary. While the Veteran was afforded a VA examination and medical opinion in February 2021, the Board finds the examiner's opinion inadequate. Specifically, the examiner indicated that a current diagnosis of carpal tunnel syndrome could not be confirmed without an EMG. However, the examiner did not indicate why an EMG was not obtained, as directed by the Board's November 2020 remand directives, or explain why one was not necessary to adequately assess the symptomatology associated with the Veteran's service-connected disability. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). As such, the Board finds that a remand is warranted for a new VA examination and medical opinion. Finally, the Board's November 2020 remand also noted there appeared to be outstanding private treatment records. In November 2020 and January 2021, the AOJ invited the Veteran to submit completed VA Forms 21-4142 (Authorization to Disclose Information to the Department of Veterans Affairs (VA)) and 21-4142a (General Release for Medical Provider Information to the Department of Veterans Affairs (VA)) so that VA could obtain these records. To date, no response has been received. However, as the Board is remanding the appeal, the Veteran is again invited to complete these forms so that VA can request private treatment records relevant to his appeal. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for private treatment received for his cervical spine and bilateral upper extremity neurologic disabilities, to include from Dr. D. Smith from 2011 to present. Make two requests for the authorized records from the identified providers, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records from the Iowa VAMC for the period from 1989 to 1990, to include a May 1989 neurosurgery consult. 3. Obtain the Veteran's VA treatment records for the period from April 2021 to present. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral upper extremity neurologic disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, to include obtaining an EMG, if necessary. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must opine whether the symptomatology associated Veteran's service-connected bilateral upper extremity disability, claimed initially in 1983 as numbness in the shoulders, arms, hands, and spine and rated as ulnar neuropathy, involves additional neurological impairments, including the bilateral median nerves and/or carpal tunnel syndrome. The examiner should identify all neurological impairments associated with the Veteran's service-connected disability, to include those of the hands, wrists, elbows, and arms. Although a complete review of the claims file is required, the examiner's attention is drawn to an April 1976 neurology consult and nerve study, an October 1980 treatment record noting numbness and weakness in the hands with pain radiating to the elbow bilaterally and diagnosis of possible carpal tunnel syndrome, a September 1983 VA examination report also diagnosing possible carpal tunnel syndrome, and a March 2021 VA neurosurgery record with findings indicative of mild bilateral carpal tunnel syndrome. 5. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). (Continued on next page) An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.