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BVA denial of Right Hand Disability based on inadequate VA exam

BVA denial of Right Hand Disability based on inadequate VA exam

Summary

The Veteran served on active duty in the U.S. Air Force from January 1989 to January 1993.  His service included deployment to the “the Southwest Asia theater of operations during Operation Desert Storm.”  He suffered a right shoulder injury sometime in 1991 or 1992.

In February 2006, the Veteran claimed service connection for “Gulf War Syndrome.”  Specifically, he stated that his hands had become increasingly shaky in recent years.  In June 2006, he was diagnosed with a shoulder impingement.  As a result, he underwent a shoulder surgery in May 2007.  In September 2007 he submitted a statement claiming that his right hand disability is secondary to his service-connected shoulder disability.  His right hand condition would later be as claimed as Carpel Tunnel Syndrome (CTS).

In March 2008, the Veteran told a VA examiner that he had tremors and numbness in his right hand due to a shoulder condition.  In addition, during a January 2011 exam a VA nurse stated that numbness and pain in the Veteran’s wrists may be “due to some shoulder issues.”  Finally, in October 2011 a VA examiner noted the Veteran suffered from numbness and soreness along with shoulder pain.

In September 2014, the Court issued a memorandum decision remanding an October 2013 Board decision.  This decision noted a lack of consistent diagnoses of CTS in the record.  As a result, the Veteran underwent a new examination in May 2015.  In the exam, the examiner adopted a 2006 diagnosis of bilateral CTS.  A left ulnar compression was also noted.  Despite these findings, no further diagnostic testing was conducted.

The Board Denied Service Connection for a Right Hand Disability

In June 2016, the Board denied the Veteran’s claim for service connection relying on the May 2015 VA examination.  Specifically, it denied service connection based on the  finding that the Veteran’s right hand disability was caused by “known clinical diagnoses.”  Therefore service connection was not available.

CCK Appeals to the Court

CCK successfully appealed to the Court the denial of service connection for a right hand disability.  In its decision, the Board relied on a medical opinion that did not provide information necessary to properly judge the Veteran’s claim.

CAVC Agrees with CCK’s Argument

CCK argued, and the Court agreed, that the May 2015 VA examination was flawed.  Specifically, the Court determined that the Board failed to follow the February 2015 remand instructions.  The Board’s February 2015 remand order specifically instructed VA to complete a medical examination that accomplished three things.  First, the exam was to determine whether the Veteran’s right hand disability was caused by a known clinical diagnosis. Second, the exam was to state whether the Veteran’s right hand disability  could be characterized as a MUCMI.  Last, the examiner was required to state whether or not they believed the Veteran’s hand condition was caused or aggravated by his right shoulder disability.

The May 2015 exam failed to follow these instructions.  Specifically, the exam did not independently determine whether the Veteran’s hand disability could be caused by another previously diagnosed condition.  In its February 2015 decision the Board noted that diagnosis was “undetermined.”   However, the May 2015 examiner adopted the 2006 diagnosis of CTS as fact without explanation.  The Court also held that the examiner failed to address whether the Veteran’s right hand disability was secondary to his service-connected right shoulder disability.

Thus, the Board’s June 2016 decision denying service connection for a right hand disability was remanded.  Therefore, this case will be readjudicated when further development, including a new examination, has been completed.

Category: Court Wins

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