Citation Nr: 0812239 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-12 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for multiple sclerosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Associate Counsel INTRODUCTION The veteran served on active duty from June 1973 to June 1979 and from July 1981 to April 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In March 2008, a Travel Board hearing was held before the undersigned Veterans Law Judge at the Atlanta RO. A transcript of the hearing is of record. At his Travel Board hearing, the veteran indicated that he was requesting an increased rating for the service-connected psychiatric disability he incurred secondary to multiple sclerosis. This issue is referred to the RO for appropriate development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Organic diseases of the central nervous system are to be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. Certain diagnostic codes provide for higher minimum ratings. Psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule should especially be considered. With partial loss of use of one or more extremities from neurological lesions, the disability is to be rated by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. A review of the veteran's claims file reflects neurological, audiological, urological, and cognitive symptoms that have been identified as having developed in connection with his multiple sclerosis. The March 2003 rating decision and the February 2005 statement of the case, however, do not reflect that the veteran's symptoms have been evaluated in accordance with the 38 C.F.R. § 4.124a instructions. Therefore, the Board finds that a remand is warranted so that these manifestations of disability may be accurately rated. Furthermore, the Board notes that the veteran has not had a VA examination since March 2004. At his March 2008 hearing, the veteran testified that his symptoms have become more severe. Therefore, on remand, the veteran should be scheduled for new VA examinations to assess the current severity of his disability. On remand, the AMC should also take the opportunity to ensure that the notice requirements of the Veterans Claims Assistance Act (VCAA), as recently clarified by the United States Court of Appeals for Veterans Claims (Court), have been satisfied. See Vazquez-Flores v. Peake, -- Vet. App. -- , No. 05-0355, 2008 WL 239951 (Jan. 30, 2008); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, the case is REMANDED for the following action: 1. The AMC must provide notice as required by Vazquez-Flores v. Peake, -- Vet. App. --, No. 05-0355, 2008 WL 239951 (Jan. 30, 2008) and by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This notice should include the applicable rating criteria under the diagnostic codes applicable to rating the veteran's multiple sclerosis. 2. The veteran should be afforded VA examinations with individuals who are qualified to assess the severity of any symptoms that are associated with the veteran's multiple sclerosis. Specifically, neurological, genitourinary, audio, eye, and cognitive functioning examinations should be conducted, along with any other examinations that are deemed appropriate. The claims folder should be made available to each examiner for review in conjunction with the examination. Review of the claims folder should be indicated in the examination reports. Any indicated studies, to include neurological studies and MRIs, should be performed. The examiners should provide specific clinical findings as to the severity of any identified impairment attributable to multiple sclerosis. In formulating their answers, the examiners must discuss the relevant medical evidence of record. A complete rationale for all opinions expressed should be provided. If the examiner is unable to provide the requested opinion without resorting to speculation, it should be so stated. 3. The appellant is advised that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the appellant does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the above has been completed, and after any other development that is deemed appropriate, the AMC must readjudicate the issue on appeal. Regardless of whether a rating in excess of 30 percent is assigned, the AMC must lay out the individual disability ratings that would be warranted by each symptom of the veteran's multiple sclerosis. If the issue on appeal continues to be denied, the veteran and his representative must be provided a supplemental statement of the case. The veteran must then be given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. 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). _________________________________________________ ROBERT E. SULLIVAN 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).