Citation Nr: 1127158 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 07-35 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for traumatic arthritis, as the residual of a right wrist fracture. 2. Entitlement to an initial disability rating in excess of 10 percent for right wrist carpal tunnel syndrome, as secondary to a right wrist fracture. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael J. A. Klein, Associate Counsel INTRODUCTION The Veteran had active service from March 1967 to March 1969. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claim seeking entitlement to a disability rating in excess of 10 percent for the residuals of a service-connected right wrist fracture. During the pendency of this appeal, the Board notes that the Veteran was granted a separate 10 percent rating for carpal tunnel syndrome as secondary to his residuals of a right wrist fracture. This appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although it will result in additional delay in final adjudication of the Veteran's claims, the Board concludes that a remand is necessary for the AOJ to undertake further development of the Veteran's claims. First, the most recent VA medical treatment record is dated in August 2007, almost four years ago; however, the Veteran has indicated that he has received treatment relevant to his right wrist since that time, and asked for VA to obtain his current VA medical treatment record. See the Veteran's December 2009 statement. As such, VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A(a) (West 2002). Specifically, VA is required to obtain relevant records held by any federal department or agency that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C.A. § 5103A(c)(3). Furthermore, the Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the AOJ should obtain any relevant VA medical treatment records which date from August 2007 to the present, as these may have a bearing on the claims at issue. Second, the Veteran's representative has argued that the Veteran's VA orthopedic examination of August 2006 was inadequate, in that the examiner was not able to review the Veteran's VA medical treatment records. See the Veterans representative's statement of January 2008 and the Informal Brief of Appellant in Appealed Case (Brief) of April 2011. The duty of VA to provide a VA medical examination extends to examinations regarding claims for a higher rating. 38 U.S.C.A. § 5103A; 38 C.F.R. § 4.2 (2010) (a rating must be adequate for rating purposes). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board acknowledges that the Veteran's representative is correct in indicating that the VA orthopedic examiner of August 2006 indicated that the Veteran's medical records were not available for review, such that the August 2006 VA orthopedic examination may be considered inadequate for rating purposes. Furthermore, the Veteran's VA medical treatment records indicate that he has continuing treatment for his right wrist and these records show that his condition may have worsened since the August 2006 examination. It has been almost five years since the Veteran's VA orthopedic examination. The record is inadequate and the need for a contemporaneous examination occurs when the evidence indicates that the current rating may be incorrect. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.327(a); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) ('[W]here the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination'); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding a 23-month-old examination too remote to be contemporaneous where appellant submitted evidence indicating disability had since worsened). In this case, the post-examination VA medical treatment records and the Veteran's statements that he has received further treatment for his right wrist raise the possibility that his condition has increased in severity since the time of his August 2006 VA orthopedic examination. Therefore, a new examination is necessary to assess the current state of the Veteran's right wrist disabilities. The Board also notes that disabilities of the musculoskeletal system are based on the inability, due to damage or infection of parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. As such, VA must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The August 2006 VA orthopedic examination did provide findings regarding pain on repetitive use of the affected joint, but did not also review any additional functional loss related to the Veteran's right wrist. Therefore, in light of the lack of a review of the Veteran's medical records at the time of the August 2006 VA orthopedic examination, the amount of time that has passed since this examination, and lack of complete findings regarding functional loss related to the Veteran's disability; a remand is also necessary for a current VA orthopedic examination to address the severity of the Veteran's service-connected right wrist disorders. Finally, the Board notes that the Veteran has also raised the issue of TDIU due to his service-connected right wrist related disabilities. Specifically, he has alleged that his right wrist disability prevents him from functioning in his job as a Diesel Mechanic. See the Veteran's October 2007 VA Form 9. The AOJ has not developed or adjudicated the issue of TDIU. The United States Court of Appeals for Veterans Claims (Court) recently held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. Id. Since entitlement to a TDIU is part of the Veteran's increased rating claim being remanded, the proper remedy here is for the Board to also remand, rather than refer, the TDIU issue to the AOJ for proper development and adjudication. In this regard, the AOJ should first send the Veteran a Veterans Claims Assistance Act of 2000 (VCAA) notice letter for his TDIU claim. This letter should notify the Veteran of any information or lay or medical evidence not previously provided that is necessary to substantiate his TDIU claim. The notice should also indicate what information or evidence should be provided by the Veteran and what information or evidence VA will attempt to obtain on the Veteran's behalf. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). In addition, this letter should be compliant with the case of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). That is, the Veteran should be provided notice that advises him of the disability rating and effective date elements of a claim, keeping in mind that a TDIU claim is a type of claim for a higher disability rating. The Veteran should also be provided with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to fill out, which will indicate what steps the Veteran needs to take to pursue his claim for TDIU. Accordingly, the case is REMANDED for the following action: 1. As to the issue of TDIU, send a VCAA notice letter notifying the Veteran and his representative of any information or lay or medical evidence not previously provided that is necessary to substantiate the TDIU claim on appeal, either on a schedular or extra-schedular basis. This notice must indicate what information or evidence the Veteran should provide, and of what information or evidence VA will attempt to obtain on his behalf. See 38 U.S.C.A. § 5103(a) and 38 C.F.R. 3.159(b). This letter should also comply with the Court case of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Specifically, this letter should also advise him concerning the elements of a disability rating and an effective date. In addition, send the Veteran a VA Form 21-8940, a Veteran's Application for Increased Compensation Based on Unemployability, for him to fill out. See M21-1MR, IV.ii.2.F.25.i. 2. Ask the Veteran to identify all health care providers that have provided relevant treatment for his right wrist disabilities since August 2007, and attempt to obtain records from each health care provider that he identifies, if such records are not already in the claims file. Whether or not the Veteran has identified any new records, the AOJ must attempt to obtain all relevant VA medical treatment records from August 2007. All attempts to secure such records must be documented in the claims file. If certain records are unavailable or simply do not exist, or further attempts to obtain them would be futile, this fact should be fully documented in the claims file. 3. Schedule the Veteran for a VA orthopedic/neurological examination, by an appropriate specialist, to determine the current nature and severity of his service-connected right wrist disorders. The Veteran is hereby advised that failure to report for his scheduled VA examination, without good cause, may have adverse consequences to his claim for a higher rating. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. A) All required tests and studies should be performed as deemed necessary by the examiner. B) The examiner should also review the Veteran's VA medical treatment records, and indicate that this was accomplished in the report. C) The examiner should provide a thorough review of the manifestations of the Veteran's right wrist disorders. This should include a complete set of range of motion studies for the Veteran's right wrist, expressed in degrees. With regard to range of motion testing, the examiner should report at what point (in degrees) pain is elicited as well as whether there is any other functional loss due to weakened movement, excess fatigability or incoordination, including based on repetitive motion of the joint. If feasible, this determination should also be expressed in terms of the degree of additional range of motion lost. The examiner should also state if ankylosis is present. D) The examiner should also express an opinion as to the degree to which pain could significantly limit functional ability during flare-ups or after repeated movement of the right wrist. E) The neurological testing should include whether any paralysis is severe, moderate or mild. F) The examiner should also provide an opinion concerning the impact of the Veteran's service-connected right wrist disorders have on his employment and activities of daily living. A complete rationale and explanation for any opinion expressed should be included in the examination report. 4. Following completion of the above development, adjudicate the claims for entitlement to an increased rating for the Veteran's residuals of a right wrist fracture, for a higher initial rating for his right wrist carpal tunnel syndrome, and for entitlement to a TDIU due to the Veteran's service-connected right wrist disabilities. Consideration of whether to submit the TDIU and increased rating claims to the Director of Compensation and Pension Service for an extra-schedular evaluation under both 38 C.F.R. § 4.16(b) and 38 C.F.R. § 3.321(b) should also be undertaken by the AOJ. An extra-schedular rating is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, TDIU on an extraschedular basis merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. Any extra-schedular evaluation must address both 38 C.F.R. § 4.16(b) and 38 C.F.R. § 3.321(b). The Veteran's service-connected disabilities, as well as his employment history, educational and vocational attainment and all other factors having a bearing on his employability (or lack thereof) should be considered. 5. To help avoid a further remand, the AOJ must ensure that all requested action has been accomplished (to the extent possible) in compliance with this remand. The Veteran is noted to have a right to compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 6. If these claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. 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).