Citation Nr: 1036799 Decision Date: 09/29/10 Archive Date: 10/05/10 DOCKET NO. 06-09 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial rating in excess of 20 percent for decreased sensation and strength of the right lower extremity. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD A. Jaeger, Counsel INTRODUCTION The Veteran had active military service from June 1989 to June 1993 and September 1997 to August 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Jurisdiction of the Veteran's claims file was subsequently transferred to the Nashville, Tennessee, RO. The Board notes that the March 2004 rating decision initially assigned a rating of 10 percent for the Veteran's right lower extremity disability, effective August 13, 2003. Thereafter, in a July 2007 Decision Review Officer decision, an initial 20 percent rating was assigned, effective August 13, 2003. As the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the Board has characterized the issue as shown on the first page of this decision. The March 2004 rating decision also adjudicated several other issues, including a grant of service connection for tendonitis of the left wrist, which was assigned an initial 10 percent evaluation, effective August 13, 2003, and the denial of service connection for moderate depression. The Veteran entered a notice of disagreement as to the propriety of the initially assigned rating for her left wrist disability and the denial of service connection for moderate depression in January 2005. Relevant to the Veteran's initial rating claim regarding her left wrist disability, a statement of the case was issued in February 2006. However, the Veteran did not submit a substantive appeal. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.302 (2009). In this regard, on her February 2006 VA Form 9 (substantive appeal), she indicated that she only wished to appeal the issue of entitlement to a higher initial rating for her right lower extremity disability. Furthermore, as the RO has not taken any action to indicate to the Veteran that this issue remains on appeal and, rather, took steps to close the appeal (see certification of Appeal [VA Form 8]), the requirement that there be a substantive appeal is not waived. The facts of this case are clearly distinguished from the United States Court of Appeals for Veterans Claims' (Court) holding in Percy v. Shinseki, 23 Vet. App. 37 (2009), because in this appeal the Veteran was not wrongly mislead into believing that she had perfected an appeal of this additional issue by the RO. Therefore, the issue of entitlement to an initial rating in excess of 10 percent for left wrist tendonitis is no longer on appeal. Pertinent to the Veteran's claim for service connection for moderate depression, such was granted in a February 2006 rating decision. Specifically, in such rating decision, service connection for adjustment disorder with anxiety and depressed mood (claimed as moderate depression) was granted. Therefore, this issue is no longer on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim of entitlement to an initial rating in excess of 20 percent for decreased sensation and strength of the right lower extremity so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran is service-connected for decreased sensation and strength of the right lower extremity, evaluated as 20 percent disabling, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. She contends that such disability is more severe than the currently assigned evaluation and, therefore, a rating in excess of 20 percent is warranted. In order to adjudicate the Veteran's claim, she was afforded VA examinations in November 2003 and March 2006. It appears that the agency of original jurisdiction (AOJ) scheduled her for another VA examination in April 2008 based on her representative's argument that the March 2006 VA examination was inadequate; however, she failed to report. In this regard, the Board notes that the report of her failure to attend the VA examination indicates that notification was sent to two addresses. Approximately a week later, a certification letter was sent to the Veteran at two addresses, which were most likely those used for the examination notification letters. Both were returned as undeliverable. Therefore, it is unclear whether the Veteran received notification of her scheduled VA examination. As such, on remand, the AOJ should ascertain the Veteran's correct address through any appropriate source, including her representative, and schedule her for a VA examination in order to ascertain the current nature and severity of her right lower extremity disability. Additionally, the record reflects that the most recent treatment records contained in the claims file are dated in April 2006, with the most recent VA treatment records dated in March 2006. In this regard, the record reflects that the Veteran seeks both private and VA treatment. Therefore, while on remand, the Veteran should be requested to identify any additional outstanding treatment records for her right lower extremity disability and, thereafter, all identified records, to include those dated from March 2006 to the present from the VA facilities in Mountain Home, Tennessee, and Monroe and Shreveport, Louisiana, should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Ascertain the Veteran's correct address through any appropriate source, to include her representative. 2. Request that the Veteran identify any additional outstanding treatment records relevant to her right lower extremity disability. After securing any necessary authorization from her, obtain all identified treatment records, to include treatment records dated from March 2006 to the present from the Mountain Home, Tennessee, and Monroe and Shreveport, Louisiana, VA facilities. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After the above development has been completed and all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of her right lower extremity disability. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected right lower extremity disability, characterized as decreased sensation and strength of the right lower extremity. The examiner should specifically indicate whether the Veteran's right lower extremity disability more nearly approximates moderate, moderately severe, or severe, with marked muscular atrophy, incomplete paralysis of the sciatic nerve; or complete paralysis of the sciatic nerve (i.e., the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). In offering any opinion, the examiner should take into consideration all the evidence of record, to include medical records as well as the Veteran's lay statements. All opinions expressed should be accompanied by supporting rationale. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's initial rating claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2009) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). This claim 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. 2009). _________________________________________________ C. TRUEBA 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).