Citation Nr: 0006055 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 97-27 912 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada THE ISSUES 1. Entitlement to service connection for post concussion syndrome/seizure disorder. 2. Entitlement to an effective date earlier than September 26, 1997, for a grant of a total rating based on individual unemployability. 3. Whether a valid claim has been alleged for clear and unmistakable error (CUE) in the February 25, 1971 rating action granting service connection for "left" buttock scar, rated noncompensable. 4. Entitlement to an evaluation in excess of 40 percent for residuals of shell fragment wound (SFW) with retained foreign body (RFB), to include cervical spine syndrome with left C-6 root injury. 5. Entitlement to an evaluation in excess of 30 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran had active military service from November 1968 to July 1970. His awards and decorations include the CIB (Combat Infantry Badge) and Purple Heart Medal. In May 1996, the veteran filed a claim for an increased rating for a cervical spine disorder, and total rating based upon unemployability. A claim of CUE in (apparently) a 1980 rating was raised in May 1997. A claim for service connection for a seizure disorder/post concussion disorder arose in September 1997; and a claim for an earlier effective date for a total rating based upon individual unemployability was raised in April 1998. The veteran filed a claim for service connection for PTSD in September 1997. By rating action in April 1998 service connection was granted for PTSD, rated 10 percent, from the date of claim. In a June 1998 VA Form 9, the veteran stated that his "PTSD claim and 10% award" were not viewed appropriately as all the evidence was not considered. The Board finds this to be a NOD to the rating assigned. An increased rating for the PTSD was shown as an issue in the February 1997 hearing. A rating action in June 1999 assigned a 30 percent evaluation for the PTSD, effective the date of claim. A supplemental statement of the case that included the increased rating for PTSD was issued in June 1999. There is a communication from the veteran in October 1999 that includes a statement to the effect he would prove his case for 100 percent PTSD claim on appeal and try to provide new evidence. This was received October 19, the same date that the veteran requested access to all of his records to "prove my case in all of my appeals." He was provided with the information requested November 2, 1999. The veteran was informed November 22, 1999, that his case was being sent to the Board, and he had 90 days to submit additional evidence, or the date the Board promulgated a decision, whichever came first. In light of the above, and the request below for Social Security Administration records, the PTSD issue is deferred pending the remand. REMAND Concussion Syndrome Service medical records show that the veteran was seen for complaints of occipital headaches, nausea, and malaise in March 1970. Valium and increased salt intake were prescribed, with no effect. Other medications were prescribed. There was no reference to headaches on separation examination in July 1970. VA neurological evaluation in December 1970 noted complaints to include headaches. The veteran denied any loss of consciousness or convulsions. The neurological examination was negative. The veteran had complaints of tingling sensations in the scalp and headaches on examination in August 1978. A. Z., M. D., in a statement in February 1980, noted the veteran's complaints included dull basal headaches, getting worse when the cervical spine tenses in the PM and during hot weather. R. L., D. C., in a May 1980 statement opined that the retained fragment in the medial posterior occipital muscular region "can be" responsible extreme muscle rigidity, and basal headaches. G. F., D.C., in a statement in June 1996, noted complaints of nausea and headaches for the veteran. The veteran was provided a VA examination in March 1999 in regard to his complaints of headaches and visual abnormalities. He related a history of injury from a grenade. He indicated he had a fragment injury at the base of the skull and that he was "knocked out." The headaches, described as a throbbing pain, occurred twice a day around the right eye and radiate occipitally. They were relieved by relaxation. He also experiences electric shocks and tingling every day. The flashes behind the right eye had been present for a year to a year and a half and occurred two to three times per week. He had no seizures but had neck pain, as well as left shoulder pain and numbness in the left second third and fourth digits. The neurological examination findings were all normal. The examination impressions were head trauma, post-concussion syndrome, and cephalalgia. The physician had an EEG performed that was interpreted as entirely within normal limits with no epileptiform or focal abnormalities. Visual evoked potentials were also normal. The examiner could find no evidence for seizures. The Board finds the March 1999 examination report requires clarification. It is not clear just what symptoms and clinical findings were the basis for an impression of post- concussion syndrome, and whether this is in fact a clinical diagnosis of post-concussion syndrome. The etiology of the cephalalgia is also unclear. The examination impressions were entered and then followed by a note that an EEG and visual evoked potential testing would be performed. Following the testing, however, the physician did not indicate whether the results of the testing would or would not require any change in the impressions. Accordingly, the Board believes clarification is warranted. Earlier Effective Date for Award of Total Rating Based Upon Individual Unemployability The veteran, in his May 1996 application for increased compensation based on individual unemployability, reported he expected to receive disability retirement benefits. He did not identify the source of such benefits. He reported last working at Woodly Golf Course in Van Nuys, California, in January 1996. In a written statement received in February 1999, he made reference to Social Security Administration benefits. It is obvious that information relating to the veteran's receipt of Social Security Administration (SSA) disability benefits, or other disability retirement benefits, could have relevance to his claim for an earlier effective date of an award of a total rating based upon individual unemployability. Moreover, although the appellant has not alleged specifically that these records would have relevance to his other claims for compensation benefits, as a matter of the conservation of adjudicative resources it would appear prudent to defer resolution of these claims until the additional medical records, if any, are available for review. As part of the Secretary's obligation to review a thorough and complete record, the VA is required to obtain evidence from SSA, including any decisions by the administrative law judge, and to give that evidence appropriate consideration and weight. Hayes v. Brown, 9 Vet. App. 67 (1996). Additionally, it would also seem that contact with the veteran's last employer, concerning the basis for his termination of employment would also be for consideration. The veteran's Federal Tax returns for 1996 and 1997 would also shed some light on his claim of unemployability in 1996. CUE Service medical records show injuries from a booby trap explosion in January 1970. There is an entry reporting "(indeciperable word or abbreviation) was performed on admission for the superficial FWs." The wounds were described as involving the "neck, right arm and left buttock." Delayed primary closure of the wounds was performed on February 2, however, it was noted that the "left buttock" wound developed an abscess, was reopened and irrigated and allowed to heal secondarily. The wound was reported as healed by March 2. He was given light duty for one week. It appears he was discharged from hospital care on March 2. There is a May 2, 1970, record noting an old "frag" wound with cellulitis. Medication and soaks were prescribed. The wound was not otherwise identified. On VA neurological examination in December 1970 it was recorded that the veteran sustained fragment wounds to the neck, "arm" and "buttock" January 29, 1970. The wounds became infected and had to be opened. It was reported he remained hospitalized for 34 days and returned to duty for 5 months in Vietnam. A rating action in February 1971 granted service connection for fragment wounds of the neck, "right" arm, and "left" buttock, rated noncompensable, Code 7805. VA examination in November 1971, noted the veteran reported a history of the fragment wound to the buttock, but he stated he had "no distress" in the extremities or hips. Examination disclosed a 1 inch by 7/8ths of an inch scar on the mid "right" buttock. The wounds were described a superficial. A February 1972 rating action provided a separate compensable rating for the neck wound, and continued a noncompensable rating for the "right" arm and "left" buttock. A November 1972 examination showed a 1 inch scar of the mid "right" buttock, non-tender and non-adherent. An X-ray of the pelvis and both hips showed a linear, opaque metallic foreign body, 2 mm. in size overlying the "right" hip joint. A January 1973 rating action continued the rating assigned for the fragment wounds of the left arm, "left" buttock and right clavicle. The presence of a retained foreign body on X-ray was noted, and the description of the service-connected disability was amended to include the phrase "retained foreign bodies." VA examination in May 1980 noted complaints of some numbness in the "right" buttock area, and examination revealed some local tenderness and paresthesia in the "right" buttock area. At a May 1997 personal hearing, argument was raised that there was CUE in the prior rating actions regarding the evaluation of the buttock wound. The representative maintained that service medical records showed debridement, with a subsequent episode of cellulitis followed by further debridement. It was further asserted that the 1980 examination disclosed local tenderness, paresthesia, a depressed scar and muscle damage. A rating determination in October 1999, showed scar of the "right" buttock, rated noncompensable. It was acknowledged that the initial ratings were erroneous to the extent they identified the buttock wound as involving the left side as opposed to the right, however, the RO maintained that this would not change the assigned rating. While the veteran filed a valid NOD to the October 1999 denial of the CUE claim, there is no record of a statement of the case (SOC), or substantive appeal from the veteran. The RO has not issued a statement of the case in response to the notice of disagreement, and these issues must be remanded to the RO for the issuance of such a statement of the case. 38 U.S.C.A. § 7105; see Manlincon v. West, 12 Vet. App. 238 (1999); Tablazon v. Brown, 8 Vet. App. 359, 361 (1995) (the filing of a notice of disagreement initiates the appellate process) see also Ledford v. West, 136 F.3d 776 (Fed. Cir 1998); Collaro v. West, 136 F.3d 1304 (Fed. Cir. 1998); Buckley v. West, 12 Vet. App. 76 (1998). With respect to the claim involving allegations of CUE, the Board must begin by noting the very high hurdles set forth by the governing regulations and the United States Court of Veterans Appeals (Court) that must be surmounted to raise a valid claim of CUE. Pursuant to 38 C.F.R. § 3.105(e) (1992), previous determinations which are final and binding . . . will be accepted as correct in the absence of CUE. A CUE is "undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); Porter v. Brown, 5 Vet. App. 233, 235 (1993). CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The Court has propounded a three-pronged test to determine whether CUE is present in a prior determination: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied, " (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). In light of the above, the veteran and his representative are respectfully reminded that they need to specify which rating action or ratings actions they believe contain CUE and the specific basis for alleging CUE in each rating determination. Residuals of SFW to the Neck The original grant of service connection for the fragment wounds, in February 1971 assigned a noncompensable evaluation for scars to the neck, right arm and left buttock, Code 7805. A rating action in February 1972 assigned a 10 percent evaluation for residuals of shell fragment wound to the neck with retained metallic foreign bodies in the cervical spine, Code 5323. An examination in May 1980 showed 5 degrees of cervical flexion and extension backwards to 10 degrees. Lateral flexion and rotation could not be obtained. There was marked muscular spasm present. The evaluation for the neck and cervical spine disability was increased to 30 percent under Code 5290, by rating action in September 1980. When examined by the VA in June 1996, the veteran complained of limited motion of the neck, and numbness in the 3 middle fingers of the left hand. He had "80" degrees of cervical flexion, and 45 degrees of extension, complaints of pain radiating into the left upper extremity. He reportedly has right and left rotation and lateral bending to 60 degrees, "restricted by pain." There was questionable left triceps weakness of 4/5, and grip strength was good. Deep tendon reflexes were intact, as was sensation. X-ray studies of the cervical spine showed 2 metallic fragments in the suboccipital region, reversal of the normal cervical lordosis, and disc spaces were normal. The examination diagnosis was cervical disc syndrome. A peripheral nerve examination in June 1996 disclosed normal strength and tone on muscle testing. Neck motion was "ant" (flexion) to 45 degrees, "post" (extension) to 15 degrees, right lateral bending to 45 degrees and left lateral bending 15 to 20 degrees. With left lateral bending there was tingling of the third and fourth fingers. Diagnosis was signs and symptoms of left C-6 root injury compatible with previous history and injuries. Magnetic imaging of the cervical spine, without contrast, in July 1996, revealed multiple disc anomalies and canal stenosis, from C-3 to 7. Because of the veteran's subjective complaints, there was an EMG (electromyographic) study that started with the right upper extremity, and the findings were normal until terminated prematurely by the veteran. It was noted that rescheduling for the remainder of the testing should be accomplished. An MRI of the cervical spine in February 1997 showed vertebral height and disc spaces within normal limits, no evidence of subluxation in neutral, flexion or extension positions, and a small osteophyte projecting from the inferior end plate of C 6. The VA Chief of Neurosurgery, in a March 4, 1997 memorandum, noted that the veteran had been evaluated by the neurosurgery department, and his films viewed. There was no objective neurological deficit consistent with radiculopathy or cervical myelopathy, and he was not an operative candidate. Based on this summary of the evidence, there appears to be conflicting evidence as the presence of any neuropathy or radiculopathy from the cervical spine. The EMG testing, which may have helped resolve this question, was not completed. The presence or absence of neuropathy or radiculopathy in turn has significant rating implications. It is not clear, for example, whether the veteran should have two separate ratings under Codes 5290 and 8510: one rating for the limitation of motion and another rating for the neuropathy. The rating assigned in August 1996 was under Codes 5290-8510. On the other hand, if there is some neurological component to the neck disability, consideration also may be appropriate for a rating under Code 5293. The July 1997 statement of the case shows the 40 percent evaluation was under this code. The record further raises a question as to whether a rating under Code 5323, which has been replaced by subsequent assignment of ratings, remains for consideration, or whether evaluation under this code is now precluded in light of the provisions of 38 C.F.R. § 4.14 in view of the ratings now assigned for the same functional impairment under other diagnostic codes. If a separate rating is provided under Code 5290, the Court has held that when a diagnostic code provides for compensation based solely upon limitation of motion, that the provisions of 38 C.F.R. §§ 4.40, and 4.45 (1999) must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The Board finds that further development is warranted as to this issue. In order to fulfill its statutory duty to assist the veteran and adequately develop his claim, the Board believes that further development, as specified below, is required. See 38 U.S.C.A. § 5107(a). Accordingly, the case is remanded to the RO for the following actions. 1. The veteran should be permitted to submit or identify any other evidence in support of his claim. 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). 2. The RO, with any necessary assistance from the veteran, should secure and associate with the claims file copies of all records of private and/or VA treatment for the veteran from 1997 to the present. 3. The RO should contact the veteran and have him provide a release of information for any SSA claim medical records, and/or any other disability claim medical records. With veteran's help the RO should try to contact Woodly Golf Course and request that the employer provide a statement concerning the basis for the veteran's termination of employment and the date of that termination. The veteran should also be asked to provide copies of his Federal Income Tax returns for calendar years 1995 and 1996. The Court has made it clear that the "duty to assist" is not a one way street, and that the claimant can not stand idle when the duty is invoked by failing to provide important information or otherwise failing to cooperate. Wood v. Derwinski, 1 Vet. App. 190 (1991) (aff'd on reconsideration, 1 Vet. App. 460 (1991); Olson v. Principi, 3 Vet. App. 480, 483 (1992) 4. The RO should contact the veteran and request that he indicates whether he desires to undergo EMG testing in order to finish the workup started in 1997. If the veteran is willing to undergo such testing, it should be arranged. 5. Whether such EMG testing is accomplished or not, the RO should have the veteran undergo a neurological examination by an appropriately qualified medical professional. The claims folder should be reviewed by the physician in conjunction with the examination. Following the examination and review of the record, the examiner should express an opinion as to whether or not cervical neuropathy or radiculopathy are present, and if so, what are the manifestations of such neuropathy. A rationale for the opinions should be provided. 6. The RO should ask that Dr. Hyson review his March 1999 examination report, and any additional evidence added to the record, including the reports of the EEG and visual evoked potentials, and then to provide clarification as to whether the impression of post-concussion syndrome represented a diagnosis of a current disability, and if so, to identify the manifestations of a current disability due to post-concussion syndrome. Dr. Hyson should also provide an opinion as to the etiology of the cephalalgia and, if this is a current disability, what are the manifestations due to the disability. The complete rationale for all opinions expressed must be provided, and if any opinion can not be provided without resort to speculation, the examiner should so note. If the same VA physician is not available, the RO is respectfully requested to secure an opinion on these questions from an appropriately qualified VA physician, and that physician must be provided an opportunity to review the record in this case to form a background upon which to formulate such an opinion. If additional examination and/or testing is required it should be accomplished. If not required there should be a specific statement to that effect, including the rational for that determination. The veteran is advised that failure to report for any scheduled examination may have adverse consequences to his claim as the information requested on this examination addresses questions of causation and symptomatology that are vital in these claims. 7. The RO should then review the examination reports and determine whether they are in compliance with the above requests, if not corrective action should be taken. Stegall v. West, 11 Vet. App. 262 (1998). The RO should then readjudicate the issues on appeal. With respect to the evaluation of the cervical spine disability, the RO should address the question of the disability is most appropriately evaluated under Codes 5323, 5290, 8510 or 5293, or some combination of these codes, and provide a rational in light of the clinical findings. If the benefits sought on appeal remained denied in whole or part, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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. Richard B. Frank 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).