Citation Nr: 1123418 Decision Date: 06/21/11 Archive Date: 06/28/11 DOCKET NO. 07-29 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES Entitlement to an initial compensable disability rating for reflex sympathetic dystrophy (RSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active duty from August 1990 to May 1994 and from December 1995 to July 2002. This matter comes before the Board of Veterans' Appeals (Board) from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming, which granted service connection for RSD, associated with the Veteran's service-connected right ankle sprain, and assigned a noncompensable disability rating, and denied service connection for major depressive disorder (claimed as anxiety and depression). The Veteran's claims file was relocated to the St. Petersburg, Florida RO. In a December 2007 rating decision, the St. Petersburg RO granted service connection for mood disorder with depressive and anxiety symptoms and assigned a 30 percent initial disability rating. The Veteran did not file a notice of disagreement with this rating decision. Subsequently, the Veteran's claims file was relocated to the Denver, Colorado RO. The Board notes that, in his April 2011 Written Brief Presentation, the Veteran's representative raised the issue of an increased disability rating for his service-connected psychiatric disability. As this issue is not currently before the Board, it is referred to the RO 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 The duty to assist includes obtaining additional medical records or an examination when necessary to make an adequate determination. Duenas v. Principi, 18 Vet. App. 512 (2005). The Board notes that, in October 2006, the Veteran submitted a statement indicating that he had no further evidence to submit with regard to his claims. However, since that time, he has indicated that he received VA and private treatment for his service-connected right foot RSD, and it is unclear when this treatment was rendered. The most recent medical records in the claims file are from December 2007. As such, the Board finds that, in order to fulfill the duty to assist, the Veteran should be contacted and asked to indicate whether he has had any VA or private treatment for his service-connected right foot RSD since December 2007. In addition, the most recent VA examination for the Veteran's service-connected RSD of the right foot was in November 2007. The Veteran has indicated that his right foot disability is worse than was evaluated at his November 2007 VA examination. The Veteran is rated under Diagnostic Code 8522, pertaining to paralysis of the superficial peroneal nerve. The Veteran's representative has contended, in his April 2011 Written Brief Presentation, that the November 2007 VA examiner did not comment on the motion of the Veteran's toes, even though this is related to paralysis of the peroneal nerve. He also contended that the Veteran should be afforded separate disability ratings under other Diagnostic Codes pertaining to disabilities in the nerves of the right ankle and foot which affect the range of motion; however, the Veteran is presently service-connected for residuals of a right ankle sprain under limitation of motion of the right ankle. Except as otherwise provided in the VA Schedule for Rating Disabilities (Rating Schedule), all disabilities, including those arising from a single disease entity, are to be rated separately, unless the conditions constitute the same disability or the same manifestation. 38 C.F.R. §§ 4.14, 4.25; Esteban v. Brown, 6 Vet. App. 259 (1994). The critical inquiry in making such a determination is whether any of the symptomatology is duplicative of or overlapping; the United States Court of Appeals for Veterans Claims (Court) has held that the appellant is entitled to a combined rating where the symptomatology is distinct and separate. Esteban, at 262 (1994). The November 2007 VA examiner noted that the Veteran has burning pain as a result of his service-connected right foot RSD, and that he has also had loss of inversion and eversion of his right ankle, with some increase in fatigue and some pain with weakness, but no lack of endurance. Upon x-ray, there were no acute findings. It is unclear, based upon the evidence of record at this time, whether his limitation of motion of the right ankle is due to his service-connected RSD, and would warrant separate disability ratings. In addition, as the Veteran has not had a VA examination since November 2007, the Board finds that he should be afforded a VA neurological examination to assess the current nature and severity of his service-connected right foot RSD. Because the Veteran's appeal regarding his right foot RSD arises from an initial rating decision, which established service connection and assigned an initial disability rating, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Accordingly, consideration should be given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found, for the relevant appeals period. Accordingly, the case is REMANDED for the following action: 1. The AOJ should ask the Veteran to identify all health care providers that have treated him for his service-connected right foot RSD since December 2007. The AOJ should attempt to obtain records from each health care provider he identifies that might have available records. If records are unavailable, please have the provider so indicate. 2. The AOJ should make arrangements for the Veteran to be afforded a neurological examination, by an appropriate specialist, to determine the current nature and severity of the Veteran's right foot RSD. The claims file, this remand and any additional treatment records must be made available to the examiner for review of the pertinent evidence in connection with the examination, and the report should so indicate. The neurological examiner is to assess the nature and severity of the Veteran's right foot RSD in accordance with the latest AMIE worksheet for rating disabilities of the nervous system. All indicated tests or studies deemed necessary for an accurate assessment should be done, including electromyograph (EMG) and nerve conduction studies tests. The examiner should comment as to which nerves in his right foot/ankle are affected by his RSD, and whether they cause limitation of motion of his right foot, ankle or toes. The Diagnostic Codes applicable to nerve impairment distinguish the types of paralysis--complete and incomplete. Under incomplete paralysis, the degree of paralysis is further broken down into three or four categories: severe, moderately severe, moderate, and mild. With these categories in mind, the examiner should classify the appellant's right foot and ankle impairments, distinguishing among the categories and using the results of all pertinent testing of record. The examiner should clearly outline the rationale and discuss the medical principles involved for any opinions expressed. If the requested medical opinion cannot be given, the examiner should state the reason why. 3. After completion of the above, the AOJ should readjudicate the appellant's claim, taking into account the holding in Fenderson, supra regarding the rating of the peroneal nerves. If any determination remains unfavorable to the appellant, he and his representative should be provided with a supplemental statement of the case. The Veteran should be afforded an opportunity to respond before the case is returned to the Board for further review. No action by the Veteran is required until he receives further notice; however, the Veteran is advised that failure to cooperate by reporting for examination may have adverse consequences on his claims. 38 C.F.R. § 3.655 (2010). The appellant has the right to submit additional evidence and argument on the matter or 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. 2010). _________________________________________________ A. BRYANT 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) (2010).