Citation Nr: 0904026 Decision Date: 02/05/09 Archive Date: 02/13/09 DOCKET NO. 04-12 979 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for the service-connected residuals of the right ulnar styloid with arthritis, post-operative. 2. Entitlement to an evaluation in excess of 10 percent for the service-connected residuals of a fracture of the left styloid, post-operative. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Bosely, Associate Counsel INTRODUCTION The veteran served on active duty from January 1976 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 RO rating decision. The veteran's file was permanently transferred from the RO in Nashville, Tennessee, to the RO in Albuquerque, New Mexico, in November 2007. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND After a careful review of the record, the Board finds that the veteran's claims for increased must be remanded for further action. The RO in Nashville, Tennessee, scheduled the veteran for a VA examination in June 2007, but he failed to appear. In October 2007, the RO learned that the veteran had moved to New Mexico. Consequently, they then permanently transferred the file to the RO in Albuquerque, New Mexico. Thereafter, the RO in Albuquerque scheduled the veteran for a VA examination in February 11, 2008. He again did not appear. The veteran's representative asserts that the veteran missed the scheduled VA examinations because the RO did not provide the veteran with proper notice. The representative asserts that the service-connected disabilities are worse than when originally rated. The Board notes that VA's duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). The veteran has the burden to keep VA apprised of his whereabouts. VA does not have to turn up heaven and earth to find him. Hyson v. Brown, 5 Vet. App. 262, 264 (1993). Nonetheless, the Board finds that remand is necessary to allow the RO another opportunity to schedule the veteran for a VA examination to fully evaluate the current severity of his service-connected wrist disabilities. See Olson v. Principi, 3 Vet. App. 480, 482 (1992) ( when a veteran claims that his condition is worse than when originally rated, and when the available evidence is too old for an evaluation of the claimant's current condition, VA's duty to assist includes providing him with a new examination); Hyson v. Brown, 5 Vet. App. 262, 264 (1993) (when a file discloses other possible or plausible addresses, an attempt should be made to locate a veteran at the alternate known address before finding abandonment of a previously adjudicated benefit). The veteran is hereby advised that failure to report to the scheduled examination may result in denial of the claim. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. See 38 C.F.R. § 3.655. If the veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file a copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility at which the examination is to take place. Prior to arranging for the veteran to undergo VA examination, the RO should also give the veteran another opportunity to present information and/or evidence pertinent to his present claim. The RO's notice letter to the veteran should explain that he has a full one-year period for response. Further, the RO should advise the veteran of the elements required to establish entitlement to an increased rating per Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), Hart v. Mansfield, 21 Vet. App.505 (2007), and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the veteran provides sufficient information, and, if needed, authorization to obtain that evidence, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by VCAA. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by VCAA prior to adjudicating the claims remaining on appeal. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the veteran in order to request that he provide sufficient information, and if necessary, signed authorization, to enable it to obtain any additional evidence pertaining to the claim on appeal. The RO's letter should advise the veteran of the elements required by Dingess/Hartmann, Hart, and Vazquez- Flores, as cited above, regarding a claim for an increased rating. The letter should advise the veteran of the respective duties of VA and the claimant in procuring evidence, and should invite the veteran to provide VA with any evidence in his possession relevant to his claim that is not already of record. 2. If the veteran responds, the RO should assist the veteran in obtaining any additional evidence identified by following the procedures set forth in 38 C.F.R. § 3.159. Whether or not the veteran responds, the RO should obtain the veteran's VA treatment records that are not currently of record. All records/responses obtained should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received have been associated with the claims file, or the time period for the veteran's response has expired, the RO should arrange for the veteran to undergo a VA examination to determine the current severity of the service-connected wrist disabilities. The entire claims file must be made available to the examiner designated to examine the veteran, and the examination report should include discussion of the veteran's documented medical history and assertions. All appropriate tests and studies, to include range of motion and addressing limitation of motion due to pain, should be accomplished and all clinical findings should be reported in detail. Based on the examination, the examiner should provide an assessment of the current severity of the veteran's service- connected wrist disabilities and should set forth all examination findings, along with a complete rationale for all conclusions reached, in a printed (typewritten) report. 4. To help avoid future remand, the RO must ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims for an increase in light of all pertinent evidence and legal authority. Furthermore, after readjudicating the schedular rating, the RO should determine whether the matter should be referred to the Undersecretary for Benefits or to the Director of Compensation and Pension Services for extraschedular consideration. 38 C.F.R. § 3.321(b)(1). If any benefit sought on appeal remains denied after readjudication, the RO should furnish to the veteran and his representative, if any, an appropriate Supplemental Statement of the Case (SSOC) that includes clear reasons and bases for all determinations, and affords them the appropriate time period for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The veteran need take no further action until otherwise notified, but he has the right to submit additional evidence and argument during the appropriate time period. See Kutscherousky v. West, 12 Vet. App. 369 (1999). Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims 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 Supp. 2008). _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2008).