Citation Nr: 1032819 Decision Date: 08/31/10 Archive Date: 09/08/10 DOCKET NO. 03-11 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a compensable rating prior to May 22, 2002, for service-connected right elbow postoperative residuals of soft tissue mass, muscle herniation, and resultant scar. 2. Entitlement to a rating in excess of 10 percent from May 22, 2002, forward, for service connection right elbow postoperative residuals of soft tissue mass, muscle herniation, and resultant scar. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from August 1985 to May 1990 and from September 1990 to August 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in April 1997 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. That decision denied a compensable rating for the Veteran's postoperative residuals of service- connected right elbow disability. As reflected on the title page of this decision, in November 2002, the RO granted an increased rating of 10 percent, effective May 22, 2002, for this disability. The Veteran has continued his appeal for a higher rating. See AB v. Brown, 6 Vet. App. 35 (1993). This appeal was remanded by the Board to the RO in March 2002. The Veteran provided testimony at July 2005 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board remanded the appeal to the Appeals Management Center (AMC) in November 2005. After further development and adjudication by the RO/AMC, the Board issued a decision in this matter in February 2008. In March 2009, the Board's February 2008 decision was vacated and remanded to the Board by the Court of Veterans Appeals (Court). The Board again remanded the claim to the Agency of Original Jurisdiction in June 2009 for further development and adjudication. In a statement received from the Veteran in May 2009, he raised the issue of entitlement to service connection for depression, claimed as secondary to service-connected right elbow disability. In a statement received from the Veteran in May 2010 he raised the issue of entitlement to service connection for carpal tunnel syndrome, claim as secondary to his service-connected right elbow disability. These issues are being referred to the RO because they have been raised by the record, but there is no indication in the claims file that they have been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In a June 2009 remand the Board requested that the RO/AMC obtain private records of treatment from Michael S. Green, M.D. (referred to in the Board's prior remand as Dr. MSG). In July 2009 the RO/AMC issued a letter to the Veteran by which, among other things, it requested that the Veteran complete a VA Form 21-4142, Authorization and Consent to Release Information, for his records of treatment with Dr. Green. On May 6, 2010, the RO/AMC issued the Veteran a supplemental statement of the case (SSOC) indicating that he had not responded to the July 2009 letter. The Veteran was provided 30 days to respond to the SSOC. In correspondence received by the Appeals Management Center on May 18, 2010, the Veteran provided his response to the May 6, 2010, SSOC, including VA Form 21-4142s for Dr. Green at Midland Orthopedics for the period from 1997 to the present, and also for records of treatment of the right elbow at Springwood Lake Family Practice, for the period from 1993 through the present. The RO/AMC did not seek to obtain the identified records from Dr. Green or from Springwood Lake Family Practice. Pursuant to VA's duty to assist the Veteran in the development of his claim and instructions set forth in the Board's prior remand, the RO/AMC should seek to obtain the identified records from Dr. Green and Springwood Lake Family Practice. See 38 U.S.C.A. § 5103A(a)-(c); Stegall v. West, 11 Vet. App. 268, 271 (1998). Also, the RO/AMC should obtain any additional relevant records of VA treatment for the period from May 2010 forward. See 38 U.S.C.A. § 5103A(a)-(c). In addition, VA records of treatment in April 2010 indicate that the Veteran was seeking to take leave pursuant to the Family Medical Leave Act due his right lateral epicondylitis and history of muscle hernia repair, and that he had been provided a medical note to restrict him to light duty on days that the condition would flare up. March 2010 VA treatment records indicate tingling in the fingers and a diagnosis of carpal tunnel syndrome. These records appear to reflect a worsening of the Veteran's service-connected right elbow and arm disability, in addition to reflecting the possibility of additional disability secondary to the service-connected condition (see introduction, above). The most recent VA examination report in the claims file considered with respect to the current appeal is from June 2007 and indicates that the Veteran's condition was mild, and that he was still able to do his work at the post office. In light of the apparent worsening and possible complications of his service- connected condition, the Veteran should be scheduled for a new VA examination of his service-connected right arm and elbow disability, as recently requested by the Veteran and his representative in correspondence dated in May 2010 and July 2010, respectively. See 38 U.S.C.A. § 5103A(d); VAOPGCPREC 11-95. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify all records of VA and non-VA health care providers who have treated his right elbow postoperative residuals of soft tissue mass, muscle herniation, and resultant scar that have not been previously obtained by VA and associated with the claims file. After obtaining any additionally required appropriate authorizations for release of medical information, the RO should obtain records from each health care provider the Veteran identifies. The records sought should include relevant records of treatment from Dr. Green from 1997 forward and relevant records of treatment from Springwood Family Practice from 1993 forward, as identified in completed VA Form 21-4142s received by the AMC in May 2010. (The Board notes, however, that records of treatment at the Springwood Family Practice from August 1996 to November 2001 are already associated with the claims file and therefore need not be obtained.) The records sought should also include any relevant records of VA treatment for the period from May 2010 forward. The Veteran should also be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them to the RO/AMC. 2. Once all available medical records have been received, make arrangements with the appropriate VA medical facility for the Veteran to be afforded an examination for the purpose of determining the severity of his service- connected right elbow postoperative residuals of soft tissue mass, muscle herniation, and resultant scar. The following considerations will govern the examination: (a) The RO should send the claims file to the examiner for review, and the clinician should indicate that the claims file was reviewed. (b) The examiner should provide an opinion as to whether the Veteran has any current neurological disability or epicondylitis that is part and parcel of, or that is caused or aggravated by, the Veteran's service- connected right elbow postoperative residuals of soft tissue mass, muscle herniation, and resultant scar. (c) The examiner should indicate whether, and if so, the extent to which the Veteran's post-surgical scar is unstable, tender or painful, or results in limitation of motion of the right elbow. (d) The examiner should perform full range of motion studies of the right arm and comment on the functional limitations of the service-connected right arm muscle or scar disability caused by pain, flare-ups of pain, weakness, fatigability, and incoordination. (e) The examiner is advised that the Veteran is also service-connected for degenerative joint disease of the right elbow associated with his service-connected right arm scar and right arm muscle disability. (f) The examiner should indicate the presence or extent of any signs of muscle injury, such as loss of power, weakness, fatigue-pain, impairment of coordination and uncertainty of movement. (g) The examiner should indicate the extent of disability of muscle groups V and VI of the right arm, and specifically describe the nature and extent of disability caused by his service-connected muscle herniation or any related soft tissue impairment such as a soft tissue mass, as opposed to the service-connected residual scar and service-connected degenerative joint disease of the right elbow. 3. Readjudicate the issues on appeal. Readjudication must include consideration of the appropriate rating for disability attributable to the residual scar, and disability of muscle groups V and VI attributable to service-connected muscle herniation and soft tissue mass. See 38 C.F.R. §§ 4.118 (Schedule of Ratings- Skin), 4.73, Diagnostic Codes 5305and 5306 (rating criteria for muscle groups V and VI). Readjudication should include appropriate consideration of changes in the rating schedule both for rating skin disabilities and muscle disabilities for the period from March 1996 (one year prior to the date of the Veteran's currently appealed increased rating claim) forward. See VAOPGCPREC 3-2000. If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. 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). This claim 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. 2009). _________________________________________________ CHERYL L. MASON 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) (2009).