Citation Nr: 1106004 Decision Date: 02/14/11 Archive Date: 02/28/11 DOCKET NO. 01-07 889 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware THE ISSUES 1. Entitlement to a rating in excess of 20 percent for residuals of a cervical spine injury with C4-C7 fusion and subluxation (cervical spine disability). 2. Entitlement to a rating in excess of 20 percent for residuals of a fracture of the right radius and ulna, post-operative, (minor), (right arm disability). 3. Entitlement to a rating in excess of 20 percent for residuals of a fracture of the right tibia and lateral malleolus with traumatic arthritis (right leg disability). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The Veteran served on active duty from September 1981 to September 1984. These matters came before the Board of Veterans' Appeals (Board) initially on appeal from a March 2000 rating decision issued in April 2000, in which the RO denied the Veteran's claims of entitlement to increased ratings for his service-connected cervical spine and right arm leg disabilities. In November 2005 and December 2006, the Board remanded the case to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The issues of entitlement to a nonservice-connected pension and to service connection for a low back injury, for radiculopathy of the right upper extremity as secondary to the Veteran's service-connected cervical spine disability and for shin splints of the right lower extremity as secondary to his service-connected right leg disability have been raised by the record, but have not 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 AMC, in Washington, DC. VA will notify the Veteran if further action, on his part, is required. REMAND A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Instruction paragraph 1 of the Board's November 2005 remand ordered the RO to schedule the Veteran for VA examination, "[a]fter associating all outstanding records" with the claims file. In correspondence received in April 2004, the Veteran reported that he received treatment at Walter Reed Army Medical Center (WRAMC) in the 1980s, and at the Togus, Maine, Miami, Florida, and Martinsburg, West Virginia, VA Medical Centers (VAMCs). The Veteran indicated that his treatment at Togus was during the period from 1986 to 1989, and that his treatment at Miami was between 1990 and 1992. The claims file also contains VA treatment records from the Wilmington, Delaware VAMC dated from June 12, 2000 to March 15, 2004. Even though WRAMC indicated that it retired records after five years to the National Personnel Records Center (NPRC) in St. Louis, in a follow-up request to the NPRC, the AMC asked for service treatment records not for the Veteran's post-service medical records from the WRAMC. Thus, no outstanding medical records from the WRAMC or from any of the VAMCs listed above have been sought and associated with the record. In light of the holding in Hart v. Mansfield, 21 Vet. App. 505 (2007), this is particularly important here, where the Veteran has failed to report for VA examinations scheduled in February 2004, January 2006, and October 2009 and the rating criteria for the spine have changed twice during the appeal period. On remand, outstanding medical records from WRAMC and the Miami, Togus, Martinsburg and Wilmington VAMCs should be sought and associated with the claims file. Similarly, VA should request that the Veteran identify and provide authorization to enable it to obtain any pertinent private medical records. See Lind v. Principi, 3 Vet. App. 493, 494 (1992). As noted in the January 2011 informal hearing presentation, the August 2009 VA examination report was inadequate for rating the Veteran's right arm disability. Moreover, in light of the fact that outstanding medical records had not been sought or associated with the claims file prior to the most recent VA examinations, the Veteran should be scheduled for new examinations, along with a review of the claims file by the examiner(s). The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, may result in a denial of his increased ratings claims. See 38 C.F.R. § 3.655(b) (2010). Finally, this case must be remanded to comply with VA's duty to notify claimants in substantiating a claim for VA benefits. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VA notice requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. In the present appeal, the Veteran was not provided with notice of the type of evidence necessary to establish an effective date, if an increased rating(s) is granted on appeal. On remand, VA should ensure that the Veteran receives complete and proper notice. 38 C.F.R. § 3.159(b)(1) (2010). Accordingly, the case is REMANDED for the following action: 1. Review the entire file and ensure that all notice obligations have been satisfied in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 (2010). In particular, send the Veteran and his representative a corrective notice, that explains the information or evidence needed to establish an effective date, if a higher rating(s)evaluation is granted for any of the service-connected disabilities on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claims file must include documentation that VA has complied with VA's duty to notify a claimant. 2. Obtain all outstanding medical records for treatment and evaluation of the Veteran from the Miami, Florida, Togus, Maine, Martinsburg, West Virginia, and Wilmington, Delaware VA Medical Centers, since September 22, 1984. Also, contact the NPRC at the Page Avenue address in St. Louis, Missouri, and obtain all outstanding medical records for treatment and evaluation of the Veteran from the Walter Reed Army Medical Center, since September 22, 1984. All records and responses received should be associated with the claims file. 3. Send to the Veteran and his representative, a letter requesting that the Veteran identify any healthcare providers that have treated him for his cervical spine, right arm and leg disabilities, since September 22, 1984, and to provide information and, if necessary, authorization, to enable VA to obtain any additional evidence pertinent to the increased ratings claims on appeal. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After completion of 1, 2 and 3 above, schedule the Veteran for VA examination(s) to determine the nature, extent, frequency and severity of his orthopedic and neurologic impairment related to service-connected cervical spine, right arm and right leg disabilities. In the notice of the scheduled examination(s), advise the Veteran that the examination(s) requested are deemed necessary to evaluate his claims and that his failure, without good cause, to report for any scheduled examination will result in the denial of his claims. See 38 C.F.R. § 3.655. The entire claims file, to include a complete copy of the REMAND must be made available to the examiner(s) designated to examine the Veteran, and the examination report(s) should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies (to include x-rays, EMG, or nerve conduction studies, if needed) should be accomplished (with all results made available to the examiner prior to the completion of his or her report(s)), and all clinical findings should be reported in detail. With respect to the Veteran's orthopedic impairment, the examiner should identify and express an opinion as to the severity of any orthopedic manifestations (including decreased range of motion and the presence or absence of muscle spasm) of the Veteran's cervical spine, right arm and right leg disabilities. The examiner should conduct range of motion studies expressed in degrees, with and without pain (with standard ranges provided for comparison purposes). He or she should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with each of the three service-connected disabilities. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether there is any ankylosis of the right elbow, right wrist, right knee, right ankle, cervical spine or the entire spine, and if so, whether such is favorable or unfavorable, and the extent of such ankylosis. The examiner should indicate whether arthritis is present, and whether the Veteran's right knee is manifested by recurrent subluxation or lateral instability; dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; or symptomatic removal of the semilunar cartilage. In addition, if possible, the examiner should state whether the cervical spine disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of such episodes. With respect to any neurological impairment, the examiner should identify any neurological pathology affecting the Veteran's cervical spine, right arm and right leg disabilities, and express an opinion as to their severity- mild, moderate or severe. Moreover, the examiner should indicate whether the Veteran's service-connected cervical spine and right arm and leg disabilities, either alone or together, render him unable to secure and/or follow a substantially gainful occupation. The examiner(s) should clearly outline the rationale for any opinion expressed and all clinical findings should be reported in detail. If any requested medical opinion cannot be given, the examiner(s) should state the reason(s) why. 5. If the Veteran fails to report to any scheduled examination, obtain and associate with the claims file a copy(ies) of any notice(s) of the date and time of the examination(s) sent to the Veteran by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal, in light of all pertinent evidence and legal authority. His increased ratings claims should include consideration of revisions in the schedular rating criteria and whether "staged ratings," pursuant to the Hart decision, cited to above, and referral for an extraschedular rating, under the provisions of 38 C.F.R. § 3.321(b)(1), are warranted. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case, and afford them the 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 the matter or matters the Board has remanded. 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. 2010). _________________________________________________ DEBORAH W. SINGLETON 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).