Citation Nr: 0003375 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 93-18 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for left carpal tunnel syndrome. 2. Entitlement to an increased rating of more than 10 percent for cervical strain, prior to January 21, 1992. 3. Entitlement to an increased rating of more than 10 percent for lumbosacral strain, prior to January 21, 1992. REPRESENTATION Appellant represented by: Timothy L. Salvatore, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. A. Markey, Counsel INTRODUCTION The veteran served on active duty from September 1972 to September 1976. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an October 1991 determination by the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA) which granted increased ratings of 10 percent each for lumbosacral and cervical strains, effective from the date of the claim, April 1, 1991. A notice of disagreement was received in January 1992. A statement of the case as to the increased ratings issues for lumbosacral strain and cervical strain was issued to the veteran in September 1992. In October 1992, the veteran filed a substantive appeal with respect to these claims. Also, in September 1992, the RO denied entitlement to service connection for cervical radiculopathy. In October 1992, the veteran filed a notice of disagreement as to the denial of service connection for cervical radiculopathy. A supplemental statement of the case was issued in December 1992, which addressed this issue, along with the increased rating issues. A substantive appeal was received in July 1993. This matter also came before the Board from a September 1992 the RO determination that new and material evidence had not been submitted to reopen the claim for service connection for left carpal tunnel syndrome. A notice of disagreement was received in October 1992. A statement of the case was issued in December 1992. A substantive appeal was received in July 1993. In August 1993, the veteran testified at a hearing before a member of the Board, sitting at the RO. In August 1995, the Board determined that new and material evidence had been submitted sufficient to reopen the claim for service connection for left carpal tunnel syndrome and remanded this case for further development. In addition, the Board remanded for further development the issues of service connection for cervical radiculopathy and lumbar radiculopathy, the latter found to be "inextricably intertwined" with the claim for increased rating for lumbosacral strain. Following the requested development, in a February 1997 determination, the RO denied service connection for left carpal tunnel syndrome on the merits. The RO granted service connection for cervical radiculopathy and rated that disability in conjunction with the already service-connected cervical strain. The recharacterized disability, cervical strain with cervical radiculopathy and degenerative changes, was rated as 20 percent disabling, effective from January 21, 1992. The RO also granted service connection for lumbar radiculopathy and rated that disability in conjunction with the already service-connected lumbosacral strain. The RO, after recharacterizing the disability, lumbar strain with extensive degenerative changes at L5-S1, rated that disability as 40 percent disabling, effective from January 21, 1992. The Board, in a June 1998 decision, denied, among other things, the claims for entitlement to service connection for left carpal tunnel syndrome, entitlement to an disability evaluation higher than 10 percent for the cervical strain prior to January 21, 1992, and entitlement to an disability evaluation higher than 10 percent for the lumbosacral strain prior to January 21, 1992. Thereafter, the veteran appealed these matters to the United States Court of Appeals for Veterans Claims (hereinafter the Court). In June 1999, while the case was pending, the veteran's attorney and VA's Office of General Counsel filed a joint motion (Motion) requesting that the Court vacate the Board's June 1998 decision with respect to the three issues noted above. Further, the Motion requested that the case be remanded to the Board for further evidentiary development and readjudication. In July 1999, the Court granted the Motion, vacated the Board's June 1998 decision with respect to these three issues (the appeal with respect to two other issues, not noted above, was dismissed) and remanded the case to the Board for compliance with directives that were specified by the Court. These matters will be addressed below. In April 1999 the veteran claimed that his service-connected low back and neck disorders had increased in severity; he also requested consideration of a total rating due to individual unemployability. These matters have not been developed for appellate review and will not addressed herein. They are referred to the attention of the RO for appropriate action. REMAND It appears that during the course of appellate review, the veteran changed his mailing address to Texas; previously he resided in Louisiana. The RO should determine whether jurisdiction of the veteran's case should be transferred to another RO and take appropriate steps to effectuate such transfer, if necessary. The Joint Motion, a copy of which has been placed in the claims folder and which was granted by the Court, directed the Board to further explore the etiology of the veteran's left carpal tunnel syndrome. It was noted that the examiner who conducted the October 1996 VA examination indicated that such disability was "of unknown etiology" and not related to his service-connected spine disorders. However, the Board, in its decision on appeal, stated that that examiner opined that there was "no relationship" between the left carpal tunnel syndrome and service, which statement was not based on medical opinion. It was directed that the examiner who conducted the October 1996 examination clarify whether the left carpal tunnel syndrome had its onset during the veteran's active service. In the event the October 1996 examiner was not available, another examination should be scheduled to obtain the necessary opinion. Such directive requires further action by the RO. In December 1999, the Director of Administrative Service of the Board sent a letter to the veteran advising him that the Board member who conducted the August 1993 hearing is no longer employed with the Board. The veteran was advised of his right to have another Board hearing, and in a letter dated December 23, 1999, his attorney requested the scheduling of an electronic hearing before a member of the Board pursuant to 38 C.F.R. § 20.700 (e) (1999). As such, this matter is remanded to the RO for the scheduling of such a hearing. In view of the above, this matter is REMANDED to the RO for the following action: 1. The RO should take the appropriate steps to determine whether the claims folder should be transferred to another RO in light of the veteran's apparent relocation to Texas. 2. The RO should refer the claims folder, along with a copy of the Joint Motion, to the appropriate VA medical facility where the October 1996 examination was conducted, so that the physician who examined the veteran at that time can again review the records and offer an opinion as to whether the veteran's left carpal tunnel syndrome had its onset during his military service. In the event that physician is no longer available, the requested opinion should be obtained from another physician of equal qualifications after he or she has had the opportunity to thoroughly review the veteran's claims folder. 3. Thereafter, the appropriate RO should schedule the veteran for an electronic hearing before a member of the Board pursuant to 38 C.F.R. § 20.700 (e) (1999). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. N. R. ROBIN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).