Citation Nr: 1033071 Decision Date: 09/02/10 Archive Date: 09/13/10 DOCKET NO. 08-20 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating for a right (major) shoulder disorder, currently evaluated as 30 percent disabling. 2. Entitlement to service connection for a left arm disorder, to include as due to the service-connected right (major) shoulder disorder. 3. Entitlement to service connection for bilateral foot disorder, to include as due to the service-connected varicose veins of both lower extremities. 4. Entitlement to service connection for a right great toe disorder (originally claimed as a bone spur), to include as due to the service-connected varicose veins of both lower extremities. 5. Entitlement to service connection for a right lower arm disorder. 6. Entitlement to service connection for a disability manifested by numbness of the right fingers. 7. Entitlement to service connection for a left hand disorder (originally clamed as chronic inflammation, thumb joint deformity and carpel tunnel syndrome). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Carole R. Kammel, Counsel INTRODUCTION The Veteran had military service from September 1974 to January 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2002 and November 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. By a March 2002 action, the RO, in part, assigned a 30 percent rating to the service-connected right (major) shoulder disorder, effective June 7, 1999--the date VA received the Veteran's original claim for compensation for this disability. By a November 2007 rating action, the RO, in part, denied service connection for the claimed service connection disorders on appeal. The Veteran appealed the RO's March 2002 and November 2007 rating actions to the Board. In May 2010, the Veteran testified before the undersigned Acting Veterans Law Judge at a hearing conducted at the Board's offices in Washington, DC. A copy of the hearing transcript is of record. The appeal is REMANDED to the RO/Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. REMAND With respect to the Veteran's increased rating claim on appeal, the Board acknowledges that 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. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Although the Veteran's most recent VA general medical examination was in August 2009, she maintains that her service-connected right shoulder disorder has increased in severity since the above-cited VA examination, specifically to include locking-type symptoms. Thus, the Veteran should be scheduled for a VA examination to ascertain the current severity of her service-connected right (major) shoulder disorder. The Veteran has also maintained that she has bilateral foot and right great toe disorders (originally claimed as a bone spur) that are secondary to her service-connected varicose veins of both lower extremities. The medical evidence of record, however, does not contain any medical opinion addressing whether or not the Veteran's service-connected varicose veins of both lower extremities caused or aggravated any bilateral foot and right great toe disorders. Thus, the Board finds that prior to further appellate review of the claims for service connection for bilateral foot and right great toe disorder, to include on a secondary basis, a VA examination that addresses the questions below is in order. The RO denied the claims for service connection for bilateral foot and right great toe disorders on a direct basis. There is no indication that secondary service connection under 38 C.F.R. § 3.310 (2009) was considered with respect to these claims. To ensure that all due process requirements are met, the RO should ensure that the Veteran is properly notified of what evidence is needed to support her claim for service connection for bilateral foot and right great toe disorders on a secondary basis. See 38 C.F.R. § 3.310 (2009). Concerning her claims for service connection for a right lower arm disorder, disability manifested by numbness of the right fingers, and left hand disorder (originally clamed as chronic inflammation, thumb joint deformity and carpel tunnel syndrome), the Veteran maintains that these claimed disorders had their onset during military service while working as a computer operator and that the symptoms have continued since service discharge in 1987. Service treatment records show that in July 1978, the Veteran was diagnosed with a ganglion cyst on the dorsal aspect of his right wrist that had been present for the previous five months. Post-service VA treatment and examination reports, dated from April 1997 to August 2009, are of record. In March 2000, the Veteran experienced decreased sensation at the tip of her right index and ulnar tip of the right ring finger. X-rays were unremarkable. She was instructed to continue with Motrin and heat on an as needed basis. In February 2003, the Veteran was issued a trial of a left wrist/thumb nocturnal splinting for occasional pain in the first metacarpal joint area. A diagnosis with respect to the left wrist was not recorded. The Veteran has not been provided a VA medical examination regarding the etiology or nature of the above-cited claimed disabilities. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). This examination should also address the claimed left arm disorder. Finally, the Veteran testified that she had last sought treatment for the claimed disabilities on appeal from the Washington, DC VA Medical Center (VAMC) in August 2009. A review of the claims file shows that the most recent VA treatment records from the above-cited medical facility--apart from an August 2009 VA examination report--are dated in 2007. As the increased evaluation and service connection claims on appeal are being remanded, ongoing VA medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. The Veteran must be contacted in writing and, consistent with the provisions of 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009) and 38 C.F.R. § 3.159 (2009), she must be notified of the information and evidence needed to substantiate her claims for service connection for bilateral foot and right great toe disorders, to include as secondary to service-connected varicose veins of both legs; and for a left arm disorder, to include as due to the service- connected right shoulder disorder. This letter must address the provisions of 38 C.F.R. § 3.310. The Veteran must also be notified of what portion of that evidence VA will secure, and what portion she must submit; moreover, she must be informed of VA's practices in assigning disability evaluations and effective dates for those evaluations. 2. The RO should take all indicated action to obtain the treatment records from the Washington VAMC, dated since August 2007, and associate such records with the claims file. Any unsuccessful attempts to obtain such records should be documented in the claims file. 3. The Veteran should next be afforded a VA medical examination, with an examiner who has reviewed her claims file. The examiner should address the following, based upon the examination findings, the history reported by the Veteran, and the claims file review: a) the current symptoms and severity of the right shoulder disorder, as shown by range of motion and any other necessary testing, to include the extent of any painful motion, functional loss due to pain (as measured in degrees of motion loss), excess fatigability, weakness, and additional disability during flare-ups; b) whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the Veteran's left arm disorder: i) is etiologically related to service, or ii) was caused or permanently worsened by the service-connected right shoulder disorder; c) whether it is at least as likely as not that the Veteran's bilateral foot and right great toe disorders: i) are etiologically related to service, or ii) were caused or permanently worsened by the service-connected varicose veins of the lower extremities; and d) whether it is at least as likely as not that the Veteran's right lower arm, right finger numbness, and left hand disorders are etiologically related to service. The examiner must set forth all examination findings and the complete rationale for any conclusions reached in a typewritten report. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO/AMC must readjudicate the Veteran's increased rating claim and service connection claims, with consideration of 38 C.F.R. § 3.310 in regard to the claims for service connection for a left arm disorder, a bilateral foot disorder, and a right great toe disorder. If any benefit sought on appeal remains denied, furnish to the Veteran and her representative a supplemental statement of the case and afford them an appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). _________________________________________________ A. C. MACKENZIE Acting 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).