Citation Nr: 0813899 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 05-15 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). 2. Entitlement to an evaluation in excess of 20 percent for post operative residuals of a fractured right ankle with traumatic arthritis. 3. Entitlement to an evaluation in excess of 20 percent for residuals of a low back injury with degenerative disk disease (DDD). 4. Entitlement to service connection for a chronic right elbow disability. 5. Entitlement to service connection for a chronic left elbow disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The veteran served on active duty from September 1964 to June 1981. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The RO, in pertinent part, denied entitlement to service connection for chronic right and left knee disabilities, chronic right and left elbow disabilities, and TDIU. The RO also continued 20 percent disabling ratings for both the service-connected post operative residuals of a fractures right ankle with traumatic arthritis and the service-connected residuals of a low back injury with DDD. The RO awarded service connection for chondrocalcinosis of the bilateral knees in May 2007. As such, the claims for service connection for right and left knee disorders are no longer in appellate status. The claims of entitlement to service connection for chronic right and left elbow disabilities and evaluations in excess of 20 percent for service-connected post operative residuals of a fractured right ankle with traumatic arthritis and residuals of a low back injury with DDD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT During the January 2008 Board hearing and in writing on December 28, 2007, and January 9, 2008, prior to the promulgation of a decision in the appeal, the veteran withdrew his claim of entitlement to TDIU. CONCLUSION OF LAW The criteria for withdrawal of a Substantive Appeal by the veteran with respect to his claim of entitlement to TDIU have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2007). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2007). During the January 2008 Board hearing, the veteran withdrew his claim of entitlement to TDIU. The veteran also submitted written statements on December 28, 2007, and January 9, 2008, requesting that his claim be withdrawn. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER Entitlement to TDIU is dismissed. REMAND The veteran has also filed claims for entitlement to service connection for chronic right and left elbow disabilities and for evaluations in excess of 20 percent for service-connected post operative residuals of a fractured right ankle with traumatic arthritis and residuals of a low back injury with DDD. A determination has been made that additional evidentiary development is necessary. Accordingly, further appellate consideration will be deferred and this case remanded for action as described below. Review of the claims file reveals the veteran's service medical records are incomplete. The veteran served on active duty from September 1964 to June 1981. Records from the first period of enlistment, September 1964 to July 1968, have not been associated with the claims folder. An attempt should be made to obtain these records on Remand. Under 38 C.F.R. § 3.159(c)(2), VA will make as many requests as are necessary to obtain relevant records from a Federal Department or agency. These records include military records. VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Id. Review of the claims file also reveals that there very well may exist records of private medical treatment pertinent to these claims that have not been associated with the veteran's claims file. In various statements, the veteran has indicated that he sought treatment from Dr. AJR for his right ankle and bilateral elbows. A May 2004 statement from Dr. AJR revealed the veteran was a long standing patient. Dr. AJR further indicated that he performed surgery on the veteran's elbow approximately 12 years prior. The veteran clarified that the elbow surgery was performed in 1987. See claim received in June 2003. The complete treatment records of the veteran from Dr. AJR have not been associated with the claims folder. An attempt should be made to obtain any outstanding records of pertinent treatment. Under 38 C.F.R. § 3.159(c)(1), VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from private medical care providers. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. Id. A follow-up request is not required if a response to the initial request indicates that the records sought do not exist or that a follow-up request for the records would be futile. Id. A VA examination is necessary in connection with the claims of entitlement to service connection for right and left elbow disabilities. Under the VCAA, an examination is necessary to make a decision on a claim, if the evidence of record contains the following: (1) competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability and (2) the evidence indicates the disability or symptoms may be associated with the claimant's active military, naval, or air service, but (3) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d). The available service medical records show the veteran sought treatment for a right elbow injury. He was variously diagnosed with a resolving soft tissue injury and probable olecranon bursitis or tendon strain. Post-service, it appears the veteran underwent arthroscopic surgery on his right elbow to remove bone fragments. After receipt of any additional service and private medical records obtained in accordance with this remand, the veteran must be scheduled for a VA examination for the express of determining the etiology of any currently diagnosed right or left elbow disability. Id. The veteran must also be afforded a VA examination in connection with the claims of entitlement to evaluations in excess of 20 percent for service-connected post operative residuals of a fractured right ankle with traumatic arthritis and residuals of a low back injury with DDD. The veteran was afforded a VA joints examination in June 2005. The veteran testified in January 2008 that his right ankle and low back disabilities have worsened in severity. Where there is evidence of a material change in the veteran's condition or as in the instant case, when the veteran asserts that the service-connected disabilities in question have undergone an increase in severity since the time of his last VA examination (June 2005), the prior VA examination report is considered inadequate for rating purposes and a new VA examination is required. See Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). After receipt of any additional records obtained in accordance with this remand, the veteran must be afforded a VA examination in connection with the increased rating claims on appeal. The examiner is asked to address the specific questions set forth in the numbered paragraphs below. As these matters are being remanded, the agency of original jurisdiction should take efforts to ensure that it provides the veteran with notice that meets all due process requirements, including those addressed by recent cases from the United States Court of Appeals for Veterans Claims' (Court). Accordingly, the case is REMANDED for the following action: 1. The RO should send the veteran notice that meets all due process requirements, including those addressed by Court decisions. In the letter, the RO should notify the veteran that, to substantiate such claims for higher evaluations for post operative residuals of a fractured right ankle with traumatic arthritis and residuals of a low back injury with DDD: (a) the veteran must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disabilities and the effect that worsening has on the his employment and daily life; (b) if the diagnostic code under which the veteran is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the veteran demonstrating a noticeable worsening or increase in severity of the disabilities and the effect of that worsening has on the veteran'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; (c) the veteran must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (d) the notice must also provide examples of the types of medical and lay evidence that the veteran may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. 2. The RO /AMC must contact the National Personnel Records Center and request the veteran's service medical records for the period of enlistment from September 1964 to July 1968. All requests for records and their responses must be clearly documented in the claims folder. 3. After obtaining the necessary releases, the RO /AMC should obtain all outstanding private medical records of the veteran from Dr. ALJ, 2525 South Rural Road, Suite 10 N, Tempe, Arizona, 85282, to include the 1987 surgical report involving the veteran's right elbow. All information, which is not duplicative of evidence already received, should be associated with the claims file. 4. After the receipt of any additional medical records obtained in accordance with this remand, the RO /AMC should schedule an orthopedic examination to ascertain the nature and etiology of any chronic right or left elbow disability. The veteran's claims folder must be available to, and reviewed by, the examiner in conjunction with the examination. The examiner should indicate that the claims folder was reviewed and should comment on the medical opinions already of record, specifically the May 2004 letter from Dr. AJR. The examiner should be asked to opine whether it is at least as likely as not that any currently diagnosed chronic elbow disability is due to or aggravated by any aspect of the veteran's period of service. The examiner should explain in detail the rationale for any opinion(s) given. 5. After the receipt of any additional medical records obtained in accordance with this remand, the AOJ/AMC should schedule the veteran for an orthopedic examination to ascertain the nature and severity of his service-connected post operative residuals of a fractured right ankle with traumatic arthritis and his service-connected residuals of a low back injury with DDD. 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. The clinical findings must be reported in detail. Additional appropriate diagnostic tests (to include X-rays) should also be accomplished with clinical findings reported in detail. (a) With respect to the post operative residuals of a fractured right ankle with traumatic arthritis, the examiner is specifically requested to comment on the range of motion for the right ankle, including the degree of motion that is limited by pain, if any. The examiner should also express an opinion concerning whether there would be additional limits of functional ability on repeated use or flare-ups (if the veteran describes flare-ups). (b) With regard to the veteran's residuals of a low back injury with DDD, the examiner should provide data as to the range of motion for the lumbosacral spine, specifically identifying any excursion of motion accompanied by pain. The examiner should also identify any objective evidence of pain and assess the extent of any pain, and comment on the extent of any incoordination, weakened movement and excess fatigability on use. The examiner should also express an opinion concerning whether there would be additional limits of functional ability on repeated use or flare-ups (if the veteran describes flare-ups). The examiner should also specifically identify any evidence of neuropathy due to the service-connected disability, to include characteristic pain, demonstrable muscle spasm, and absent ankle jerk. In addition, the examiner should quantify the number of weeks of incapacitating episodes (a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician) over the past 12 months. 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO /AMC should readjudicate the claims on appeal in light of all pertinent evidence and legal authority. Adjudication of the claims for higher evaluations should include specific consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), is appropriate. Hart v. Mansfield, 483 F.3d 1311 (Fed. Cir. 2007 (a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.) 7. If any benefit sought on appeal remains denied, the RO /AMC must furnish to the veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations and affords them an 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 assist the veteran with the development of his claims. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until further notice. However, the Board takes this opportunity to advise the veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examinations, is both critical and appreciated. The veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. These claims 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). _________________________________________________ DENNIS F. CHIAPPETTA 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). Department of Veterans Affairs