Citation Nr: 0919077 Decision Date: 05/21/09 Archive Date: 05/26/09 DOCKET NO. 07-27 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to an increased rating for residuals of a shell fragment wound to the thoracic spine, muscle group XX, currently evaluated as 20 percent disabling. 3. Entitlement to an increased rating for a shell fragment wound scar to the thoracic spine, currently evaluated as 10 percent disabling. 4. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Sean Kendall, Attorney at Law ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND As to the claim for service connection for a cervical spine disability, the Board finds the medical evidence is unclear as to whether the Veteran has a current disability. Of record is the October 2004 opinion of Craig N. Bash, M.D., which indicates the Veteran has cervical spine degenerative disc lesions on his imaging studies. Contrary to these findings is the opinion of the September 2005 VA examiner opinion that the Veteran did not have any cervical spine disability. However, the September 2005 VA examiner was unable to obtain cervical spine X-rays to support his conclusion because the claimant refused to sit for them. This case presents certain medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. These questions concern whether the Veteran currently suffers from a cervical spine disability and if so, whether such is related to his military service. Therefore, a VA examination to include X-ray studies is warranted. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2008) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. In this regard, the Board notes that while the appeal is in remand status the Veteran should be notified of his obligation to cooperate with VA in the development of his claim, including show for needed X-rays, and the consequences for falling to do so. See 38 C.F.R. § 3.655 (2008); Wood v. Derwinski, 1 Vet. App. 190, 192 (1991); Olson v. Principi, 3 Vet. App. 480, 483 (1992) ("the duty to assist is not always a one-way street. If a [V]eteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the purtative evidence"). As to the claim for an increased rating for a shell fragment wound scar to the thoracic spine, the Veteran is already receiving the maximum schedular rating possible for a scar under 38 C.F.R. § 4.118, Diagnostic Codes 7802 to 7804 (2008). Moreover, assigning the Veteran an increased rating based on the limitation of function of the affected part under 38 C.F.R. § 4.118, Diagnostic Code 7805 would violate the rule against pyramiding under 38 C.F.R. § 4.14 (2008) because the loss of thoracic spine function is already separately compensated under 38 C.F.R. § 4.73, Diagnostic Code 5320 (2008) and 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2008). Therefore, the Veteran is only entitled to an increased, 20 percent rating, for his scar if it is deep or causes a limitation of motion in an area or areas exceeding 12 square inches (77 square cm). 38 C.F.R. § 4.118, Diagnostic Code 7801. A deep scar is defined as one associated with underlying soft tissue damage. Id. A review of the record on appeal shows numerous VA examinations which contain evidence regarding the scar, including the most recent examinations which took place in December 1996, May 1998, and May 2005. However, none of these examiners provided both the length and width of the scar so that the Board could calculate whether it equaled or exceeded an area of 12 square inches (77 square cm). Nor did those examiners provide information as to whether the scar is associated with underlying soft tissue damage. Accordingly, a remand to obtain this information is required. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Lastly, the Board notes that with respect to the increased rating claims, the United States Court of Appeals for Veterans Claims (Court) in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) determined that VA's duty to assist specifically includes the following: (1) notification that the claimant must provide (or ask the Secretary 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) at least general notice of any specific measurement or testing requirements needed for an increased rating if the Diagnostic Code contains rating criteria that would not be satisfied by demonstrating only a general worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life; (3) notification that if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from 0% to as much as 100% (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; and (4) notification of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Therefore, the Board finds that a remand is also required to provide the Veteran with Vazquez-Flores compliant notice. 38 U.S.C.A. § 5103(a) (West 2002). As to the claim for TDIU, the Board finds that this claim is inextricably intertwined with the above claims. Therefore, adjudication of this claim must be deferred pending completion of the additional evidentiary development outlined above. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Accordingly, the appeal is REMANDED to the RO/AMC for the following actions: 1. The AMC/RO should send the Veteran a corrective VCAA notice. Specifically, the Veteran should be advised of the evidentiary requirements for his increased rating claims as outlined by the Court in Vazquez-Flores v. Peake. 2. The RO/AMC should make arrangements with an appropriate VA medical facility for the Veteran to be afforded an orthopedic examination of the cervical spine. The notice of the examination should, among other things, notify the Veteran of his obligation to cooperate with VA in the development of his claim, including appearing for needed X-rays, and the consequences for failing to do so. See 38 C.F.R. § 3.655. The claims folder is to be provided to the examiner for review in conjunction with the examination. After a review of the record on appeal, after taking cervical spine x-rays, and after an examination of the Veteran, the examiner should provide answers, with supporting rationale, to the following questions: a. Does the Veteran have a current cervical spine disability, to include cervical spine arthritis and/or degenerative disc lesions? b. Is it at least as likely as not (i.e., 50 percent or greater degree of probability) that any current cervical spine disability began during service or is causally linked to any incident of service, to include his thoracic spine shell fragment wound? The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. 3. The RO/AMC should make arrangements with an appropriate VA medical facility for the Veteran to be afforded a dermatological examination to determine the current nature and extent of the Veteran's thoracic spine shell fragment wound scar. The claims folder is to be provided to the examiner for review in conjunction with the examination. The examiner should provide both the length and width of the thoracic spine shell fragment wound scar and provide any opinion as to whether it is associated with underlying soft tissue damage. 4. Thereafter, the RO/AMC should readjudicate the claims. If any of the benefits sought on appeal remain denied, the Veteran and his attorney should be provided a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). _________________________________________________ S. BUSH Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2008).