Citation Nr: 18154131
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 11-08 819A
DATE:	November 29, 2018
REMANDED
Entitlement to service connection for a left hand disability is remanded.
Entitlement to service connection for a right hand disability is remanded.
REASONS FOR REMAND
The Veteran served on active duty from June 1996 to May 1997 in the U.S. Air Force and from June 2004 to July 2008 in the U.S. Navy. 
As discussed in the Board’s June 2017 remand, the Veteran requested both a Decision Review Officer (DRO) hearing and a Board hearing. A DRO hearing was scheduled for January 2017, but the Veteran called the RO, stating that she had decided not to attend her scheduled DRO hearing and only wanted a video or Travel Board Hearing. She then testified before the undersigned Veterans Law Judge during a February 2017 Travel Board hearing and a transcript is of record.
In June 2017, the Board remanded the issues on appeal for development.  The Board finds that the Agency of Original Jurisdiction (AOJ) did not substantially comply with the remand directives regarding the requested VA medical opinions.  
The AOJ afforded the Veteran an October 2017 VA examination and a July 2018 addendum opinion in which both VA examiners concluded that she had no current bilateral hand diagnosis based on the October 2017 VA examination (a musculoskeletal examination, as opposed to a peripheral nerve examination).  In doing so, the VA examiners failed to consider other medical evidence of record showing current bilateral hand diagnoses during the appeal period from the Veteran’s August 2009 service connection claim to the present.  See, e.g., April 2010 VA examination (diagnosing bilateral hand osteopenia); May 2010 VA treatment record (diagnosing bilateral ulnar tunnel and osteopenia); August 2016 VA treatment record (diagnosing ulnar neuropathy based on reported symptoms, including intermittent numbness and tingling of bilateral fourth and fifth digits, and examination findings; finding her complaints of finger paresthesias seems to be associated with peripheral neve compression and positioning).  See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the presence of a disability at any time during the claim process can justify a grant of service connection, even when the most recent diagnosis is negative). A March 2010 VA NCS/EMG report showed normal median and ulnar nerve findings.  However, the Veteran, a physician, submitted medical literature regarding upper extremity peripheral nerve issues explaining that this can sometimes occur in early to mild cases.  As the 2017 and 2018 VA examiners inaccurately concluded that the Veteran had no current right or left hand diagnoses, neither provided the medical opinions requested in the 2017 remand.  Thus, another remand is required.  Stegall v. West, 11 Vet. App. 268, 271 (1998).
The matters are REMANDED for the following action:
Schedule a VA medical opinion regarding the etiology of the Veteran’s CONCEDED, current bilateral hand conditions of osteopenia and ulnar tunnel syndrome. The examiner must review the claims file and note such review in the examination report.  Then, the examiner must answer the following questions, with full rationales: 
(a.) Is it at least as likely as not that any of her conceded, current bilateral hand conditions began during or were otherwise caused by active service? The examiner must expressly consider: August 2009 service connection claim for bilateral hand numbness and paresthesias (filed slightly more than one year after second period of active service); VA treatment records noting complaints of bilateral finger numbness as early as September 2009, i.e., slightly more than one year after her second period of active service; Veteran's contention that her current bilateral hand symptoms arose from her verified military occupational specialty (MOS) as a general practice medical officer (see DD Form 214 for second period of active service), which reportedly involved extensive typing of electronic medical records for many hours per day; Veteran’s alternative contention that her current bilateral hand symptoms arose during her second period of active service after carrying heavy ruck sacks during long hikes; Veteran’s January 2010 statement that while she experienced bilateral hand numbness and paresthesias during her second period of active service, she did not seek medical treatment during service because such symptoms were intermittent.
(b.) Is it at least as likely as not that any of the Veteran’s current bilateral hand conditions were caused (i.e., proximately due to) OR aggravated (i.e., worsened) by her service-connected cervical spine disability? The examiner must expressly consider: VA treatment records (including September 2009, March 2010, May 2010 and August 2016 notes) suggesting a possible relationship between her current bilateral ulnar tunnel syndrome and her service-connected cervical spine disability; and medical literature submitted by the Veteran in July 2010 suggesting such a relationship in some cases.
If the VA examiner cannot provide any requested opinion without resorting to mere speculation, then he or she must note that and explain why.  
If the VA examiner finds that he or she cannot answer any of the questions above without a VA peripheral nerve examination, then the RO must schedule one.
 
MICHELLE L. KANE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Janofsky, Associate Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency

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