Citation Nr: 0814373 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 06-16 756 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for arthritis of the hands on a direct or presumptive basis, or as secondary to service-connected upper extremity disability/ies. 2. Entitlement to a rating in excess of 20 percent for limitation of motion of the left knee with osteoarthritic changes. 3. Whether new and material evidence to reopen a claim for service connection for lumbosacral arthritis has been received. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The veteran had active military service from December 1943 to December 1945. He spent 125 days as a German Prisoner of War (POW) from November 23, 1944 to May 8, 1945. This appeal to the Board of Veterans' Appeals (Board) arises from rating decisions issued by the RO in June and November 2005. In a May 2005 rating action issued in June 2005, the RO, inter alia, continued the denial of the veteran's claims for a rating in excess of 20 percent rating for the veteran's left knee disability and for service connection for arthritis of the hands. In June 2005, the veteran filed a notice of disagreement (NOD) with regard to the denial of the service connection claim. In a November 2005 rating decision, the RO, inter alia, determined that no new and material evidence to reopen the veteran's claim for service connection for lumbosacral arthritis had been received. In May 2006, the veteran filed an NOD with the denial of the claim for a rating in excess of 20 percent rating for the veteran's left knee disability and the veteran's claim to reopen his claim for service connection for lumbosacral arthritis. In January 2006, the RO issued a statement of the case (SOC) addressing only the denial of the claim for service connection for arthritis of both hands; and the veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in May 2006. In April 2008, the Board granted the veteran's motion to advance this appeal on the Board's docket, pursuant to the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). For the reasons expressed below, the claim for service connection for arthritis of the hands is being remandedto the RO via the Appeals Management Center (AMC), in Washington, DC. The remand also addresses the claim for a rating in excess of 20 percent for limitation of motion of the left knee with osteoarthritic changes and the request to reopen a claim for service connection for lumbosacral arthritis-for which the veteran has completed the first of two actions required to place these matters in appellate status. VA will notify the veteran when further action, on his part, is required. As a final preliminary matter, in a VA Form 9 dated May 16, 2006, the veteran raised claims for a rating in excess of 10 percent for his service-connected left leg scar, residual of GSW, and for service connection for a right leg disability. As the RO has not adjudicated either of these matters, they are not properly before the Board; hence, they are referred to the RO for appropriate action. REMAND The Board's review of the claims file reveals that additional RO development on the service connection claim on appeal is warranted. Statements made by the veteran and his representative indicate that the veteran has arthritis of the hands and that his arthritis should be service connected on either a direct basis, due to cold exposure while a POW or the November 1944 GSW incident in service during World War II, or as secondary to his service-connected right wrist scar or peripheral neuropathy of the right median nerve. The veteran's December 1945 separation examination report reflects that the veteran was a POW and was wounded in action, sustaining GSWs to the right wrist and the left leg. As a result, he was hospitalized for three months beginning in November 1944. Scars were noted on his right wrist and left leg. An April 1946 rating decision reflects a grant of t service connection for scars of the left leg and right wrist as residuals of GSWs received in combat. In a February 1957 statement, the veteran's private physician indicated that the veteran had been under his care for treatment of recurrent tenosynovitis of the right wrist for the past two years and that he had advised the veteran to refrain from work that involved lifting, which he did. However, this resulted in an average loss of pay of $20 weekly. In a February 1980 statement, the veteran's private physician revealed that he had recently seen the veteran for complaints of pain and stiffness over his right wrist. On physical examination, there was moderate tenderness over the right wrist but no redness or swelling. May 1980 and March 1983 VA x-rays f the veteran's right wrist revealed metallic shrapnel fragments in the soft tissues. A February 1984 VA examiner stated that that there was no obvious osteoarthritic changes to the right wrist. Following electromyography (EMG) and a nerve conduction study (NCS) in July 1989, a March 1989 VA POW Protocol examiner stated that the NCS/EMG indicated mild denervation in the median nerve distribution and supported a nerve injury and symptoms and findings of a nerve disorder. Subsequently, in a September 1989 decision, the RO granted service connection for peripheral neuropathy of the right median nerve and assigned separate 10 percent ratings each for this disability and for the veteran's right wrist scar. Following a December 2002 VA examiner's opinion that the veteran's left knee arthritis, shown on physical and x-ray examination, was a result of the veteran's war injury, in a January 2003 decision, the RO granted service connection for arthritis of the left knee and assigned an initial 10 percent rating. March 2004 VA x-rays revealed multiple retained foreign bodies distal to the radius and a carpal bone deformity which might represent old traumatic injury according to a March 2004 VA examiner, who recommended EMG studies. The impression on April 2004 EMG studies revealed a clinical history that was not compatible with significant carpal tunnel syndrome or median neuropathy. Subsequently, the veteran filed a claim for arthritis of the hands and was examined in April 2005. During the April 2005 VA examination, the veteran gave a history of chronic pain in the right wrist and arthritic symptoms in both hands, starting about five or six years ago for which he now takes Tylenol, four times a day, for pain. The veteran is left handed. Based only on the veteran's reported history and physical examination, the March 2004 examiner indicated that the veteran had a right wrist scar that causes some slight weakness of the wrist and slight limitation of range of motion. The examiner expressed doubt that the right wrist scar caused arthritis in both hands, especially in view of 32 years as a warehouse clerk which may have contributed a significant degree to development of arthritis along with the veteran's hobby of gardening. This examiner could not completely rule out some degree of contribution of the right wrist condition to some stress to use of the hands and some possible contribution to development of arthritis because of the use of the hand and finger over the years. However, the Board notes that no x-rays to confirm whether the veteran had arthritis were done and the examiner apparently did not have review the claims file or reports of the March 2003 x-rays and April 2004 NCS/EMG prior to giving an opinion. Moreover, this VA examiner did not discuss whether the veteran actually has arthritis of the either hand and, if he does whether such disability might be directly related to service as a result of the veteran's exposure to cold as a POW in Germany during the winter of 1944-1945 or the GSW incident, or as secondary to the veteran's service-connected right upper extremity disabilities. Given the veteran's assertions, and, in light of the medical evidence noted above, the Board finds that further VA examination to obtain a medical opinion needed to resolve the claim is warranted. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2006); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Hence, the RO should arrange for the veteran to undergo a VA orthopedic examination, by an appropriate physician, at a VA medical facility. The veteran is hereby advised that failure to report to any scheduled examination, without good cause, may well result in a denial of the original claim for service connection (as the claim will be considered on the basis of the record). 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. Id. If the veteran fails to report to any scheduled examination, the RO must obtain and associate with the claims file copies of any notice(s) of the date and time of the examination(s) sent to the veteran by the pertinent VA medical facility. Prior to arranging for the veteran to undergo further examination, the RO should send to the veteran and his representative notice that meets the requirements of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)). See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). In this regard the Board notes that the RO's notice letters, dated in March and August 2005, failed to give the veteran VCAA-compliant notice with regard to what is necessary to substantiate his service connection claim for arthritis of the hands on a direct, presumptive or secondary basis (that is, due to his service- connected right upper extremity disabilities), in accordance with 38 C.F.R. § 3.159(b)(1). The Board emphasizes that action by the RO is required to satisfy the notification provisions of the VCAA. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Hence, he RO should, through VCAA-compliant notice, give the veteran another opportunity to present information and evidence pertinent to the claim, notifying him that he 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 VCAA notice period). 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 to notify and assist imposed by the VCAA. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim for service connection for arthritis of the hands, on either a direct basis, to include as due to cold exposure while a POW or the November 1944 GSW incident in service during World War II, or as secondary to his service-connected right wrist scar and/or peripheral neuropathy of the right median nerve. With regard to the claim for a rating in excess of 20 percent for limitation of motion of the left knee with osteoarthritic changes and the petition to reopen a claim for service connection for lumbosacral arthritis, the Board notes that, a in VA Form 9 dated May 11, 2006 the veteran's representative indicated that the veteran was appealing his claim for service connection for a lumbar spine disability and his claim for a left leg disability, and in a VA Forms 9 dated May 16, 2006, the veteran indicated that he was appealing his claim involving his left leg wound. The Board construes these statements as timely NODs with regard to the May 2005 rating action issued in June 2005, in which the RO, inter alia, continued the denial of the veteran's claim for a rating in excess of 20 percent rating for the veteran's left knee disability and with regard to the November 2005 rating decision, in which the RO, inter alia, determined that no new and material evidence to reopen the veteran's claim for service connection for lumbosacral arthritis had been received . By filing NODs, the veteran has initiated appellate review of these issues. The next step in the appellate process is for the RO/AMC to issue to the veteran an SOC. See 38 C.F.R. § 19.29 (2007); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Consequently, these matters must be remanded to the RO for the issuance of a SOC. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2007). Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following actions: 1. The RO should issue to the veteran and his representative a SOC addressing the claim for a rating in excess of 20 percent for limitation of motion of the left knee with osteoarthritic changes and the request to reopen the veteran's claim for service connection for lumbosacral arthritis. Along with the SOC, the RO must furnish to the veteran a VA Form 9 (Appeal to Board of Veterans' Appeals), and afford him the applicable time period for perfecting an appeal as to these issues. The veteran and his representative are hereby reminded that appellate consideration of any matter identified above may be obtained only if a timely appeal is perfected. 2. The RO should furnish the veteran and his representative VCAA-compliant notice specific to the claim for service connection for arthritis of the hands on direct, presumptive or secondary basis The RO's letter should include specific notice as to the type of evidence needed to substantiate the claim on each basis. To ensure that the duty to notify the claimant what evidence will be obtained by whom is met, the RO's letter should request that the veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to any claim on appeal that is not currently of record. The RO should invite the veteran to submit all pertinent evidence in his possession, and explain the type of evidence that is his ultimate responsibility to submit. The RO's letter should also clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the appellant responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran of the records that 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 have been associated with the claims file, or the time period for the veteran's response has expired, the RO should arrange for the veteran to undergo VA orthopedic examination, which conforms to the guidelines for conducting Cold Injury Protocol examinations, by an appropriate physician, at a VA medical facility. The entire claims file must be made available to the physician designated to examine the veteran, and the examination report should reflect consideration of the veteran's documented medical history and assertions. All appropriate tests (to include x-rays) and studies and/or consultation(s) should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. After review of the claims file and examination of the veteran, the orthopedic examiner should specify whether the veteran has a diagnosis of arthritis in either, or both hands. If arthritis is found, the examiner should render an opinion, consistent with VA's Cold Injury Examination Protocol and sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater e probability) that the veteran's arthritis of either, or both hands, (a) was incurred in or aggravated by service, to include as a result of a November 1944 GSW incident or cold injury due to exposure as a POW in Germany during the winter of 1944-1945; (b) had its onset within one year of the veteran's December 3, 1945 discharge from service, or (c) was caused, or is aggravated, by the veteran's service- connected right wrist scar, residual of GSW, and/or peripheral neuropathy of the right median nerve. If aggravation of nonservice-connected disability by service-connected disability is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The physician should set forth all examination findings, along with the complete rationale for the opinion expressed, in a printed (typewritten) report. 5. If the veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination(s) sent to the veteran by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested action has 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 development deemed warranted, the RO should readjudicate the claim for service connection for arthritis of the hands, in light of all pertinent evidence and legal authority. The ROs adjudication should include consideration of the claim on a direct basis (as residual to cold injury resulting from exposure while a POW or the November 1944 GSW incident in service), a presumptive basis, and as secondary to service-connected right right upper extremity disability/ies (the wrist scar and/or peripheral neuropathy of the right median nerve). 8. If any benefit sought on appeal (for which a perfected appeal has veen filed) 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 REMAND 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).