Citation Nr: 0811301 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 03-12 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for arterial hypertension. 2. Whether new and material evidence has been received to reopen the veteran's claim for entitlement to service connection for a back disability. 3. Whether new and material evidence has been received to reopen the veteran's claim for entitlement to service connection for a psychiatric disorder. 4. Whether new and material evidence has been received to reopen the veteran's claim for entitlement to service connection for headaches. 5. Entitlement to a disability rating in excess of 10 percent disabling for the residuals of a simple fracture of the distal phalanx of the left index finger. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The veteran had active military service from January 1953 to January 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), located in San Juan, the Commonwealth of Puerto Rico. The Board in a March 2005 decision denied the enumerated claims. In doing so, the Board classified the claims pertaining to a back disability, a psychiatric disorder, and headaches in terms of whether new and material evidence had been received to reopen previously denied claims of entitlement to service connection. See Barnett v. Brown, 8 Vet. App. 1 (1995). The veteran appealed these issues to the United States Court of Appeals for Veterans Claims (Court). Both parties in this appellate matter filed a Joint Motion for Remand. In a decision rendered June 22, 2006, the Court granted the Joint Motion and remanded it to the Board for further development. The Board remanded it in December 2006 for such requested development. Although the RO in an October 2007 supplemental statement of the case determined that the evidence was sufficient to reopen a claim for service connection for a back disorder, the Board has a legal duty to address the "new and material evidence" requirement regardless of the actions of the RO. Thus it will continue to address this issue in terms of whether new and material evidence has been submitted to reopen this claim. See Barnett, supra. During the pendency of the appeal the RO in a September 2007 rating granted a 10 percent rating for the left index finger disability effective the date of claim in December 8, 2000. As that award was not a complete grant of benefits, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although these matters were remanded in December 2006, the requested development is incomplete or inadequate. In addition there remains outstanding due process notification deficiencies regarding the issues of whether new and material evidence has been received to reopen the veteran's claims for entitlement to service connection for a back disability, a psychiatric disorder and headaches. The Board notes that in the most recent supplemental statement of the case of October 2007, further adjudication of all the service connection issues including the new and material issues was deferred in part, due to the outstanding need to obtain additional evidence as mandated by the Board's prior remand. Thus correction of these development deficiencies must be completed, and the AOJ must be given another opportunity to readjudicate these service connection issues before the Board can issue a decision. Additionally, the development regarding the issue of entitlement to an increased rating for the left index finger is not in compliance with the Board's remand directives. The Court has held that a remand by the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, the veteran is noted to have submitted a statement in February 2008 asking the VA to obtain evidence from medical providers including a Dr. Rolando Colon Nerot an orthopedic surgeon, who allegedly evaluated the veteran's back condition, as well as records from a Dr. Joshe Rivera Morales in the Ponce OPC in Ponce, Puerto Rico, which the VA should attempt to obtain. Regarding the developmental deficiencies, the Board in its December 2006 remand directed the AOJ to make reasonable efforts to obtain evidence from a private physician, Dr. Vilar and a private hospital, Damas Hospital. It was pointed out that the veteran had advised the RO in August 2003 that although Dr. Vilar's records were damaged, he was willing to discuss the case with the VA. The Joint Motion and the Board noted that the AOJ did not make any efforts to contact this physician for a statement regarding the veteran's treatment, nor did the RO inform the veteran that he could have this physician submit such a statement. Thereafter, the veteran was sent a letter in January 2007 which in part requested that he complete and return to the AOJ a VA Form 21-4142 for both Damas Hospital and Dr. Vilar. Despite the fact that he did not return such a form to the AOJ with the requested information regarding these private medical providers, the AOJ is nevertheless noted to have deferred further consideration of all the service-connection claims pending receipt of additional medical evidence from the veteran, including evidence from these medical providers, as pointed out in the October 2007 supplemental statement of the case. Thus, the Board will afford the veteran yet another opportunity to provide the AOJ with information regarding these medical providers, including that requested in a VA Form 21-4142, as well as from any other additional medical providers such as those mentioned by the veteran in the February 2008 statement. Further, the Board addressed the AOJ's failure to make reasonable efforts to obtain outstanding medical evidence including clinical records from the VA outpatient clinic in Ponce, Puerto Rico, service medical records located in Old San Juan, Puerto Rico, service medical records located in Stuttgart, Germany and private German hospital records at Heilbron, Germany. The veteran is noted to have described the potential existence of pertinent medical evidence from VA Puerto de Tierra Hospital, VA outpatient Clinic in Ponce, Puerto Rico, Fort Brook in Old San Juan, Puerto Rico and Fifth General Hospital in Stuttgart, Germany. The Board, in addressing the deficiencies discussed in the Joint Motion pointed out that such records included records in government possession, and that the AOJ was said to have failed to adequately attempt to obtain these records or confirm their unavailability. The AOJ appears to have obtained all available records from the VA outpatient Clinic in Ponce, Puerto Rico as a response to requests for medical evidence resulted in the submission of VA treatment records in the custody of this facility from the 1990's to the present. An attempt to obtain evidence from the VA Puerto de Tierra Hospital resulted in a response in July 2007 reflecting that this clinic no longer exists. However, in regards to the attempts to obtain service medical records, including those located in Old San Juan, Puerto Rico, service medical records located in Stuttgart, Germany and private German hospital records at Heilbronn, Germany, the AOJ has yet to receive a response, either positive or negative from the National Personnel Records Center (NPRC). This is pointed out by the October 2007 supplemental statement of the case which noted that no response to a January 2007 request to the NPRC was received and that no follow up request had been made by the VA, and because of this, further adjudication of the service- connection claim for the headaches and a psychiatric disorder would be deferred. Thus, another attempt should be made to obtain such records. Regarding the claim for service connection for a back disorder, the AOJ in the October 2007 supplemental statement of the case determined that the evidence was sufficient to reopen this claim, but then determined that a VA examination was necessary to further address this issue. To date, no such examination has been scheduled, and in light of the AOJ's finding that one is necessary to adjudicate this claim, one should be scheduled. The Board in its December 2006 remand noted that the Joint Motion pointed out that the VA examination of August 2001 to evaluate a left index finger disability was not adequate because it was not conducted during a period of acute exacerbation of the impairment. The motion directed that an examination be conducted during a period of active flare up of the left finger disability. Although there was a VA examination in July 2007 that addressed the left finger disability, there is no indication that this examination was conducted during a period of acute flare-up as specifically ordered by the Board in December 2006 to satisfy the Joint Motion and the representative has pointed out this deficiency in a February 2008 written statement. In order to comply with the Remand's directives, another examination must address this disorder during such an acute flareup. See Stegall, supra. Finally, the Board directed the AOJ to provide adequate notice mandated by Pelegrini v. Prinicipi, 18 Vet. App. 112 (2004) regarding new and material evidence needed to reopen his previously denied claims, to include the criteria for new and material evidence applicable to claims filed prior to August 29, 2001, as is the case in this matter. The Board also directed that the notice comply with the decision of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VA's notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Although the veteran was sent a letter in July 2007 which addressed the duty to assist regarding all the issues in January 2007 which did satisfy the requirements of Dingess and Kent, supra, the letter failed to give the proper legal criteria for new and material claims filed prior to August 29, 2001, and instead gave the criteria for claims filed thereafter. Therefore, additional duty to assist notice must be sent giving the proper criteria for new and material claims filed prior to August 29, 2001. In addition there has been a recent decision by the Court addressing increased rating claims, Vasquez-Flores v. Peake, 22 Vet. Ap. 37, 2008, which points out that for an increased- compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. Vazquez- Flores v. Peake, supra. Accordingly, the case is REMANDED for the following action: 1. The AOJ must review the entire claims file and ensure that all notice obligations have been satisfied in accordance with 38 U.S.C.A. § 5103(a) and 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007) and 38 C.F.R. § 3.159 (2007) is fully satisfied. In particular, the AOJ must send the veteran a corrective notice, that: (1) explains the bases upon which his prior claims were denied and the information or evidence needed to establish new and material evidence to reopen a previously denied claim, which under the pre-August 29, 2001 criteria is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim; (2) informs him of what information or evidence VA has or will seek to provide; and (3) informs him of what information or evidence he is expected to provide to support his claim. The veteran should also be provided notice that explains the information or evidence needed to establish entitlement to an increased rating for the left index finger disability. In particular, VA must send the appellant a corrective notice, that explains (1) the information and evidence not of record needed to establish an effective date, if an increased rating is granted on appeal, as outlined by the Court in Dingess, supra, (2) that he can submit medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life, (3) generally, the criteria necessary for entitlement to a higher disability rating, (4) that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life, and (5) types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization. Vazquez- Flores, supra. 2. The AOJ should obtain service medical records located in Old San Juan, Puerto Rico (to include from Fort Brook in Old San Juan) and service medical records located in Stuttgart, Germany (to include records from the Fifth General Hospital in Stuttgart, Germany). All efforts to obtain these records should be fully documented, and the National Personnel Records Center and the VA should provide a negative response if records are not available. 3. The AOJ should contact the veteran to determine the names, addresses, and dates of treatments of any and all private medical care providers, who treated him for his claimed medical disabilities on appeal. These are to include records from Damas Hospital and private records from Dr. Vilar, as well as evidence from medical providers described by the veteran in a February 2002 statement, including a Dr. Rolando Colon Nerot an orthopedic surgeon, who allegedly evaluated the veteran's back condition, as well as records from a Dr. Joshe Rivera Morales in the Ponce OPC in Ponce, Puerto Rico. Additionally, the AOJ should contact Dr. Vilar for a statement regarding the veteran's treatment, and should inform the veteran that he could have Dr. Vilar submit such a statement regarding his treatment. All correspondence, as well as any treatment records obtained, should be made a part of the claims folder. If private treatment is reported and those records are not obtained, the veteran and his representative should be provided with information concerning the negative results and afforded an opportunity to obtain the records. 38 C.F.R. § 3.159 (2007). 4. Thereafter, the claims folder, and especially copies of all medical records concerning treatment and/or testing of the left index finger disability, if supplied, should be referred to the appropriate VA specialist. The veteran should be scheduled for a VA orthopedic examination to determine the severity of the left index finger disability. All indicated tests should be conducted and the examination must be done during a period of acute flare-up. The claims file and a copy of this REMAND must be made available to and reviewed by the examiner prior to the examination. Readings should be obtained concerning the veteran's range of motion of the left index finger in degrees. The examiner should also be asked to include the normal ranges of motion of the left index finger. Additionally, the examiner should be requested to determine whether the left index finger exhibits weakened movement, excess fatigability, or incoordination, and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion lost or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. The examiner should state whether there is a restriction in motion of a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or with extension limited by more than 30 degrees, or whether there is favorable or unfavorable ankylosis of the finger. The examiner should also discuss whether additional fingers are affected and if so, should discuss the nature and extent to which they are affected. The report of the examination should include the complete rationale for all opinions expressed. 5. After the completion of the above, the AOJ should schedule the veteran for an orthopedic examination to determine the nature and etiology of the veteran's claimed back disorder. The claims file and a separate copy of this remand must be made available to and reviewed by the examiners prior and pursuant to conduction and completion of the examination, and the examination reports must be annotated in this regard. The examiner is requested to review the pertinent medical records, examine the appellant and provide a written opinion as to the presence, etiology and onset of his claimed back disorder. Specifically the examiner is requested to provide an opinion as to (1) whether the veteran has a current disability or disabilities involving his back; (2) whether any diagnosed disability involving his back at least as likely as not began in service, to include as being related to the back complaints shown in service. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 6. The AOJ should inform the veteran of the consequences of failing to report for a VA examination without good cause as set forth in 38 C.F.R. § 3.655 (2007). 7. Following completion of the foregoing, the AOJ should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the opinions rendered by the VA specialist. If the examination report does not include fully detailed descriptions of etiology, the report must be returned to the examiner for corrective action. 38 C.F.R. § 4.2 (2007) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet. App. 121, 124 (1991). 8. After the above requested development has been completed, the AOJ should reajudicate these claims. If any benefit sought is not granted to the veteran's satisfaction, the AOJ should issue a supplemental statement of the case which should address the significance of both medical and lay evidence of record in adjudicating this claims. The requisite period of time for a response should be afforded. Thereafter, the case should be returned to the Board, if in order. The purposes of this remand are to comply with due process of law and to further develop the appellant's claims. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ A. BRYANT 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) (2007).