Citation Nr: 0813848 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 02-18 294 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a rating in excess of 20 percent for severe degenerative joint disease with foraminal stenosis, lumbar myositis, strain, and bilateral S1 radiculopathy, secondary to foraminal stenosis L5-S1. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Associate Counsel INTRODUCTION The veteran had active military service from January 1952 to December 1953, and from January 1954 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2002 rating decision in which the RO continued a 20 percent rating for the veteran's low back disability. The veteran filed a notice of disagreement (NOD) in June 2002. The RO issued a statement of the case (SOC) in October 2002 and the veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) later that same month. In June 2003, the veteran testified during a hearing before RO personnel: a transcript of that hearing is associated with the claims file. During the hearing, the veteran raise a claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. In December 2003, the RO issued a supplemental SOC (SSOC) reflecting the continued denial of the claim for a rating in excess of 20 percent for the veteran's low back disability following a de novo review of the entire evidence of record. By a February 2004 rating decision, the RO denied, inter alia, a claim for a TDIU. Review of the claims file reflects that the veteran perfected an appeal as to the RO's denial of a TDIU. In April 2005, the Board remanded the matter of an increased rating for the veteran's low back disability to the RO, via the Appeals Management Center (AMC), in Washington, DC, for additional due process and evidentiary development. After completing the Board's requested actions, the AMC continued the denial of the veteran's claim for a rating in excess of 20 percent for his low back disability (as reflected in June 2005 and October 2006 SSOCs), and returned the matter to the Board for further appellate consideration. The Board notes that, in an August 2005 rating decision, the RO granted service connection for diabetes mellitus, type II associated with herbicide exposure, and for peripheral neuropathy of the bilateral upper and lower extremities, as secondary to service-connected diabetes mellitus, each, effective April 8, 2005. Additionally, prior to certification of this appeal to the Board, the RO issued an April 2007 rating decision granting entitlement to a TDIU, effective January 26, 2007. As this is considered a full grant of the benefit sought with regards to this issue, this matter is no longer before the Board. In February 2008, the veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. For the reasons expressed below, the matter on appeal is being remanded to the RO, via the AMC, in Washington, DC. VA will notify the veteran when further action, on his part, is required. As a final preliminary matter, the Board construes statements made by the veteran in a March 2006 letter as raising claims for earlier effective dates for the grant of service connection for diabetes mellitus, type II, and for bilateral upper and bilateral lower peripheral neuropathy. There is no indication in the record that these matters have yet been addressed; hence, they are referred to the RO for appropriate action. In addition, the Board notes that although a TDIU was granted during the pendency of this appeal, the veteran still appeared to want to discuss this matter at the February 2008 Board hearing. Therefore, the RO should clarify with the veteran if he was intending to raise a "downstream" claim related to the grant of the TDIU (e.g. an earlier effective date), and if so, the RO should take the appropriate action. REMAND Unfortunately, the claims file reflects that further RO action on the appeal of the veteran's claim for a rating in excess of 20 percent for his service-connected low back disability is warranted, even though such will, regrettably, further delay an appellate decision on the claim. The veteran contends that his low back disability has worsened, to include current difficulty with walking, bending, prolonged standing and sitting, and continuous pain that is not relieved by medication. The Board notes that the veteran last underwent a VA spine examination in June 2005. Since that time, June 2005 and February 2007 VA peripheral nerve examination reports have been performed and VA examiners have attributed the veteran's neurological symptoms (which the veteran related as part of his low back disability) to his service connected peripheral neuropathy of the bilateral lower extremities (as noted above, secondary service connection for peripheral neuropathy related to diabetes was granted during the course of this appeal). The February 2007 VA peripheral nerve examination report reflects objective findings that the veteran's gait and balance were not normal. The examiner reported that the veteran walked cautiously with a cane. At an April 2007 VA hypertension examination, the veteran stated that his lower back disc disease was his most limiting disability. In addition, during the February 2008 Board hearing, the veteran was observed using a cane and he asserted that his low back disability had become worse since his last VA spine examination in June 2005. Therefore, to ensure that the record includes sufficient medical information reflecting the current severity of the veteran's low back disability, the Board finds that more contemporaneous examinations-with findings responsive to the applicable rating criteria-are needed to properly evaluate the service-connected disability under consideration. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) ("an examination too remote for rating purposes cannot be considered contemporaneous"). The examinations should include a review of the veteran's claims file and past clinical history, with particular attention to the severity of present symptomatology, as well as any significant pertinent medical history since his June 2005 VA spine examination. See also 38 C.F.R. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The Board points out that a medical determination as to the severity of the veteran's service-connected low back disability is especially important in this particular instance because the objective medical evidence does not clearly indicate what neurological symptomatology is medically related to the veteran's separately service- connected peripheral neuropathy, bilateral lower extremities, or whether it is possible to separate symptoms of the veteran's service-connected peripheral neuropathy, bilateral lower extremities from those of his service-connected low back disability. See Mittleider v. West, 11 Vet. App. 181 (1998) (where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service- connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the veteran's service- connected disability). Accordingly, the RO should arrange for the veteran to undergo VA neurological and orthopedic examinations, by appropriate physicians, at a VA medical facility to obtain the medical information needed to assess the severity of the veteran's service-connected low back disability. The veteran is hereby advised that failure to report to any scheduled examination(s), without good cause, shall result in denial of the claim for increase. 38 C.F.R. § 3.655 (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the veteran fails to report to the scheduled orthopedic examination, the RO should obtain and associate with the claims file a copy(ies) of the notice(s) of the date and time of the scheduled appointment(s) sent to him by the pertinent VA medical facility. Prior to arranging for the veteran to undergo further examination, the RO must obtain and associate with the claims file all outstanding medical records. The claims file reflects that the veteran has received medical treatment from the VA Medical Center (VAMC) in San Juan, Puerto Rico. During the February 2008 Board hearing, the veteran and his representative informed the undersigned that he has received ongoing treatment for his low back disability at the San Juan VAMC. However, the most recent treatment records from this facility that are associated with the claims file are dated in October 2006. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain all outstanding pertinent treatment records from the San Juan VAMC since October 2006, following the current procedures prescribed in 38 C.F.R. § 3.159 (2007) as regards requests for records from Federal facilities. To ensure that all due process requirements are met, the RO should also give the veteran another opportunity to present information and/or evidence pertinent to the increased rating claim on appeal. The RO should invite the veteran to submit all pertinent evidence in his possession, and ensure that its notice to the veteran meets the requirements of the recent decisions in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) (as regards the five elements of a claim for service connection- particularly, disability ratings and effective dates), and Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008) (as regards minimum 38 U.S.C. § 5103(a) notice requirements for increased rating claims). The Board f notes that, in Vazquez-Flores, the United States Court of Appeals for Veterans Claims (Court) held that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA 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; (2) 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 of 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; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation The Board emphasizes that action by the RO is required to satisfy the notification provisions of the VCAA. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003). Hence, the RO should, through VCAA-compliant notice, give the veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal, explaining that she has a full one-year period for response. See 38 U.S.C.A. § 5103 (b)(1)(West 2002); but see also 38 U.S.C.A. § 5103(b)(3)) (West Supp. 2007) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should also invite the appellant to submit all pertinent evidence in her possession, and ensure that its notice to the veteran meets the requirements of the decisions Kent and Vasquez- Flores (cited to above), as appropriate, as well as Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) (as regards the five elements of a claim for service connection- particularly, disability ratings and effective date), as appropriate. After providing the appropriate notice, the RO should obtain any additional evidence for which the veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2007). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure that the VCAA has fully been complied with. Hence, in addition to the action requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Further, in adjudicating the increased rating claim on appeal, the RO must document its specific consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) pursuant to Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007), is appropriate. Accordingly, this matter is REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain from the San Juan VAMC all outstanding pertinent records of evaluation and/or treatment of the veteran's service-connected low back disability, from October 2006 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should furnish to the veteran and his representative a VCAA-compliant notice letter requesting that the veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO should request the veteran furnish all pertinent evidence in his possession relating to the claim for a higher rating on appeal, and explain the type of evidence that is his ultimate responsibility to submit. The RO should also ensure that its letter meets the notice requirements of Dingess/Hartman and Vazquez-Flores (cited to above). The RO's letter should clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the veteran responds, the RO should assist the veteran in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and his attorney that the records were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all available records and/or responses from each contacted entity are associated with the claims file, the RO should arrange for the veteran to undergo VA neurological and orthopedic examinations, by appropriate physicians, at a VA medical facility. The neurological examination should be conducted first, and that examination report made available to the VA orthopedic examiner in conjunction with his examination of the veteran. The entire claims file, to include a complete copy of this REMAND, must be provided to each physician designated to examine the veteran, and each examination report should reflect consideration of the veteran's documented medical history and assertions. All indicated tests and studies should be accomplished, to include x-rays, (with all findings made available to the requesting physician prior to the completion of his or her report) and all clinical findings should be reported in detail and correlated to a specific diagnosis. Each examiner should set forth all examination findings, together with the complete rationale for the comments and opinions expressed, in a printed (typewritten) report. The neurological examiner should identify the existence, and frequency or extent, as appropriate, of all neurological symptoms specifically associated with the veteran's low back disability. The examiner should also offer an opinion as to whether the veteran has any separately ratable neurological disability (in addition to orthopedic disability) as a manifestation of the service-connected low back disability. .The neurological examiner should opine whether it is possible to separate symptoms of the veteran's separately service-connected peripheral neuropathy, bilateral lower extremities, from those of his service- connected low back disability. The orthopedic examiner should conduct range of motion testing of the low back (expressed in degrees, with standard ranges provided for comparison purposes). He or he should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the low back. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the physician should indicate whether, and to what extent, the veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. Further, the orthopedic physician should indicate whether the veteran experiences localized tenderness, muscle spasm, or guarding; and, if so, whether such muscle spasm or guarding is severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The physician should also indicate whether there is any ankylosis of the spine; and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable. If the veteran has incapacitating episodes associated with his service- connected lumbar disability, the examiner should indicate whether over the last 12- month period, the veteran's incapacitating episodes had a total duration of (a) at least two weeks but less than four weeks; (b) at least four weeks but less than six weeks; or (c) at least six weeks. Considering all neurological and orthopedic examination findings, the examiner should also ascertain the extent of impairment attributable to the veteran's service-connected low back disability, particularly with respect to locomotion and any possible loss of use of any extremity. The examiner should report whether the veteran has lost the use of his lower extremities so as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. (The term "preclude locomotion" means a necessity for regular and constant use of braces, crutches, canes, or a wheelchair as a normal mode of locomotion, although occasional locomotion by other methods may be possible.) 5. If the veteran fails to report to any scheduled examination(s), the RO must obtain and associate with the claims file copy(ies) of any notice(s) of the date and time of the examination(s) sent to him by the pertinent medical facility. 6. To help avoid future remand, the RO must ensure that all 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). 7. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim for an increased rating for the service- connected low back disability on appeal. If the veteran fails, without good cause, to report to any scheduled VA examination(s), the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO should adjudicate the claim for increase in light of all pertinent evidence and legal authority, to include consideration of all symptoms attributable to the service- connected disability in light of Mittleider (cited to above), as well as whether "staged rating" of the low back disability, pursuant to Hart (cited to above), is appropriate. 8. If the benefit sought on appeal remains denied, the RO must furnish to the veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. 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. 2007). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2007).