Citation Nr: 1754135	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  13-24 294	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to service connection for a neurological disorder of the right upper extremity, to include as secondary to service-connected mine fragment wound (MFW) residuals of the right arm muscle group VIII.

(The issue of entitlement to a rating in excess of 10 percent for residuals of a MFW of the right arm muscle group VIII is the subject of a separate Board decision.)


REPRESENTATION

Appellant represented by:	Marine Corps League


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. D. Deane, Counsel


INTRODUCTION

The Veteran served on active duty from December 1966 to January 1970.  His awards and decorations include the Combat Action Ribbon and the Purple Heart
Medal with one star.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision rendered in June 2009 by the Department of Veterans Affairs Regional Office in Huntington, West Virginia. 

In February 2013 and May 2013, the Board remanded this matter for additional development and readjudication.  

In February 2017, the Veteran testified at a Board hearing at the RO before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the electronic claims file.  

The issue of entitlement to reimbursement of medical expenses incurred at St. Mary's Medical Center in July 2015 was adjudicated by the Agency of Original Jurisdiction (AOJ) in March 2016.  While the electronic claims file showed that the Veteran had filed a timely notice of disagreement (NOD) in May 2016 for that matter and noted that the NOD was sent to the VA Medical Center (VAMC), this matter is referred to the AOJ for any necessary additional action.  

The appeal is REMANDED to the AOJ.  VA will notify the appellant if further action is required.


REMAND

In written statements of record and during the February 2017 Board hearing, the Veteran has asserted that his claimed neurological disorder of the right upper extremity, to include nerve damage in the right arm and hand causing numbness and tingling sensations, was secondary to his service-connected MFW residuals of the right arm muscle group VIII.  

VA imaging reports dated in April 2009 revealed mild disc space narrowing at C6-7 with anterior osteophyte formation, neural foraminal narrowing, and anterior osteophyte formation.  A May 2009 VA electromyograph (EMG)/nerve conduction velocity (NCV) study revealed abnormal findings of old, chronic cervical radiculopathy involving the right C6-7 nerve roots.  It was noted that active denervation in cervical paraspinals was likely due to dorsal root rami irritation from degenerative changes in the cervical spine.

In a May 2009 VA examination report, the examiner indicated that there was no clinical evidence of any neurological deficit in the right forearm at present.  The examiner then highlighted that there was evidence of old right cervical radiculopathy and no evidence of peripheral neuropathy.  In a February 2010 VA peripheral nerves examination report, the Veteran complained of having tingling, numbness, and right hand pain for many years that increased in severity for last three years with reported right hand generalized weakness with difficulty holding objects.  The examiner noted that the weakness and fatigue with paresthesias and numbness were all related to the C6-7 radiculopathy.  It was further indicated that degenerative joint disease or well healed fractures did not produce that set of symptoms, which were very typical of nerve dysfunction as observed in a radiculopathy.  In a February 2010 addendum, the examiner noted that the fact that the symptoms started more than 30 years after the in-service right arm injury basically ruled out any possibility of a direct relationship to the injury and supported that the symptoms were secondary to a cervical radiculopathy.

In a December 2013 VA examination report, the examiner noted that the Veteran's mine fragment wound was not causing his current symptoms related to his history of cervical radiculopathy.  In a March 2014 VA neck and peripheral nerve examination reports, the examiner diagnosed degenerative joint disease of the cervical spine.  The Veteran reported that he had neck pain for the past 15 to 20 years, and was diagnosed with degenerative joint disease of the cervical spine in April 2009.  The examiner opined that the Veteran's claimed cervical spine condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury.  In the cited rationale, the examiner noted that the diagnosed degenerative joint disease with neural foraminal narrowing accounted for the Veteran's current right cervical radiculopathy.  It was further indicated that the Veteran's occupation as a boiler room technician since separation from service had excessive physical demands.  The examiner concluded that it was more likely than not that the Veteran's cervical spine disorder was a result of repeated trauma in his occupation rather than his in-service motor vehicle accident 46 years ago. 

The Board has determined that the May 2009, February 2010, December 2013, and March 2014 VA examination reports do not fully address the Veteran's contentions, as none of the above VA examiners provided an opinion as to whether the Veteran's claimed disorder, currently diagnosed C6-7 radiculopathy, was aggravated by his service-connected MFW residuals of the right arm muscle group VIII.  Based on the foregoing discussion, the AOJ should arrange for an additional VA medical opinion to clarify the etiology of the Veteran's claimed neurological disorder of the right upper extremity on appeal.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate).

Finally, the record contains VA treatment records from the Huntington VA Medical Center (VAMC) most recently dated in November 2014.  On remand, updated VA treatment records from the Huntington VAMC, to include all associated outpatient clinics, dated since November 2014, should be obtained and associated with the electronic claims file.  See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).

Accordingly, the case is REMANDED for the following actions:

1.  The AOJ must obtain updated treatment records pertaining to the Veteran's claimed neurological disorder of the right upper extremity from Huntington VAMC, to include all associated outpatient clinics, for the time period from November 2014 to the present and associate them with the record.

2.  Thereafter, obtain a VA medical opinion to clarify the etiology of the Veteran's claimed neurological disorder of the right upper extremity from an appropriate examiner.  If an opinion cannot be provided without an examination, one should be provided.  The electronic claims file must be made available to the examiner, and the examiner must specify in the medical opinion that the file has been reviewed.
 
Based on a review of the evidence of record and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any previously or currently diagnosed neurological disorder of the right upper extremity was aggravated (permanently worsened) by the Veteran's service-connected MFW residuals of the right arm muscle group VIII.  

Rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).  The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim.  38 C.F.R. § 3.655 (2016).

3.  The AOJ must review the record to ensure that the foregoing requested development has been completed.  In particular, review any VA examination report or medical opinion to ensure that it is responsive to and in compliance with the directives of this REMAND and if not, implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

4.  After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated, taking into consideration all relevant evidence associated with the evidence of record since the July 2013 statement of the case.  If the benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  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.A. §§ 5109B, 7112 (West 2014).


_________________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).
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