Citation Nr: 0813121 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 96-43 049 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent prior to July 5, 1996, in excess of 40 percent prior to September 26, 2003, and in excess of 50 percent beginning September 26, 2003 for service-connected post-traumatic auto fusion of C4-C5 fracture with fixed kyphotic deformity of the cervical spine at 40 degrees (cervical spine disability). 2. Entitlement to an evaluation in excess of 20 percent for neurological deficit of the left upper extremity associated with cervical spine disability. REPRESENTATION Appellant represented by: D.D. Wedemeyer, Esq. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The veteran served on active duty from September 1968 to September 1976. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a May 1996 rating decision from the agency of original jurisdiction (AOJ), which denied an evaluation in excess of 30 percent for service connected residuals of a fracture of the cervical spine with post- traumatic arthritis. The veteran timely appealed the assigned rating. The case was remanded back to the AOJ by the Board in September 1998 for additional development, and a February 2000 rating decision granted an increased rating of 40 percent for the veteran's service-connected cervical spine disability effective on July 5, 1996. In November 2000, the Board denied an evaluation in excess of 40 percent for service-connected residuals of a fracture of the cervical spine with traumatic degenerative changes. The veteran appealed the decision to the Court of Appeals for Veterans Claims (Court). An April 2003 Order of the Court vacated the November 2000 Board decision and remanded the case back to the Board. In February 2004, the Board remanded the case back to the AOJ for additional development, and a March 2005 rating decision granted an increased evaluation of 50 percent for service- connected cervical spine disability, effective on September 26, 2003. In a December 2005 decision, the Board denied an evaluation in excess of 50 percent for service-connected residuals of a fracture of the cervical spine, C5, with traumatic degenerative changes based on functional loss and vertebral body deformity and granted a separate rating of 20 percent for the service-connected residuals of a fracture of the cervical spine, C5, with traumatic degenerative changes based on a neurological deficit involving the left upper extremity. The veteran appealed the denial to the Court. The December 2005 Board decision to deny ratings in excess of 50 percent and 20 percent for the service-connected manifestations of cervical spine disability was vacated and remanded back to the Board by a Court Order in June 2007 granting a Joint Motion for Remand (Motion) so that the Board could provide adequate reasons and bases for its findings and conclusions. More specifically, the Joint Motion concluded that the Board did not adequately address the Court's April 2003 comments on whether the medical evidence on file constituted evidence of "sciatic neuropathy" under Diagnostic Code 5293, and the Board failed to adequately address the issue of whether there was evidence of "cord involvement" under Diagnostic Code 5285. A letter was sent to the veteran on September 11, 2007, with a copy to his representative, in which the veteran was given 90 days from the date of the letter to submit additional argument or evidence in support of his appeal prior to the Board's readjudication. A request for an additional 60 day extension, which was received on behalf of the veteran in January 2008, was granted on January 3, 2008. The veteran was given until March 10, 2008 for the submission of additional evidence. Additional argument was received by VA on behalf of the veteran on March 10, 2008. For the reasons indicated hereinbelow, the issues on appeal are being remanded to the AOJ via the Appeals Management Center in Washington, DC. REMAND According to the June 2007 Joint Motion, the Board failed to explain why an increased rating of 60 percent was not warranted prior to September 23, 2002 for the veteran's service-connected cervical spine disability under the criteria of Diagnostic Code 5293 due to symptoms that equate to "sciatic neuropathy" and did not adequately explain why the medical evidence of record did not show "cord involvement" as contemplated under the criteria of Diagnostic Code 5285. Both Diagnostic Codes 5285 and 5293 were in effect prior to September 26, 2003. After review of the claims file, the Board concludes that the medical evidence on file, the most recent of which is dated in October 2004, is insufficient to determine the current severity of the veteran's service-connected cervical spine disabilities. VA has the authority to schedule a compensation and pension examination when such is deemed to be necessary, and the veteran has an obligation to report for that examination. Pursuant to 38 C.F.R. § 3.327(a) (2007), examinations will be requested whenever VA determines, as in this case, that there is a need to verify the exact nature and severity of a disability. See also 38 C.F.R. § 3.159 (2007). The Board notes that there is no VA letter to the veteran informing him that an effective date would be assigned if either of his increased rating claims is granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). There is also no VA letter telling the veteran that he should provide evidence on the impact that his service-connected cervical spine disabilities have on his employment and daily life. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Accordingly, these matters are REMANDED to the AOJ for the following actions: 1. The AOJ should take appropriate steps to contact the veteran and ask him to provide the names and addresses, as well as the dates of treatment, of all health care providers who have treated him since October 2004, the date of the most recent medical evidence on file, for service- connected cervical spine disabilities. After securing any appropriate consent from the veteran, VA must obtain any such treatment records that have not previously been associated with the veteran's VA claims folder. If VA is unsuccessful in obtaining any medical records identified by the veteran, it must inform the veteran of this and request him to provide copies of the outstanding medical records. All attempts to secure this evidence must be documented in the claims file by the AOJ. 2. The AOJ should arrange for a VA examination, or examinations, to determine the current nature and severity of the veteran's service-connected cervical spine disabilities. The VA claims folder, including a copy of this Remand, must be made available to and reviewed by the examiner. All indicated tests and studies, including x-rays, should be accomplished; and all clinical findings should be reported in detail and correlated to a specific diagnosis. The clinical findings must include range of motion studies of the cervical spine. As noted hereinabove, the VA should opine as to whether the veteran is experiencing manifestations that more nearly approximate the criteria for pronounced disability under the older Diagnostic Code 5293 or the criteria for "cord involvement" under the older Diagnostic Code 5285. All examination findings, along with the complete rationale for each opinion expressed and conclusion reached, must be set forth in a typewritten report. 3. The AOJ must notify the veteran that it is his responsibility to report for the examination and to cooperate in the development of the claims. 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 veteran does not report for the aforementioned 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, as well as any additional indicated development, the AOJ must readjudicate the issues currently on appeal based on all relevant evidence on file, to include any additional evidence added as a result of this remand. The AOJ should consider all potentially applicable diagnostic codes, to include whether a higher rating was warranted under the diagnostic criteria in effect prior to September 26, 2003 under either Diagnostic Code 5293 or 5285. The AOJ should also consider whether a separate compensable evaluation is warranted under Diagnostic Code 8512 for neurological impairment of the veteran's left hand and wrist, as contended on behalf of the veteran in March 2008. If any of the benefits sought on appeal remains denied, the veteran and his representative must be provided a Supplemental Statement of the Case, as well as a letter complying with Dingess/Hartman and Vazquez-Flores, and must be afforded an appropriate opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the AOJ. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the AOJ. 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. 2002) (Historical and Statutory Notes); see M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. _________________________________________________ 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) (2007).