Citation Nr: 1109823 Decision Date: 03/11/11 Archive Date: 03/24/11 DOCKET NO. 99-23 979A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a rating in excess of 70 percent for residuals of a right brachial plexus injury. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Ishizawar, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1983 to February 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 1998 rating decision of the Newark, New Jersey Department of Veterans Affairs (VA) Regional Office (RO). In January 2004, a hearing was held before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is associated with the Veteran's claims file. In December 2004, a Travel Board hearing was held before the undersigned. The audiotape of the Travel Board hearing has been lost, and thus a transcription was not obtained. The Veteran was notified of that fact in a May 2005 letter (a copy of which was mailed to his representative), and was asked to clarify his wishes as to whether he desired another Travel Board hearing (or, in the alternative, a videoconference hearing). The letter expressly notified him that "[i]f you do not respond within 30 days from the date of this letter, the Board will assume you do not want a hearing and will proceed accordingly." Although the May 2005 letter to the Veteran was returned undeliverable, it was remailed to him in June 2005 (with another copy forwarded to his representative). The Veteran did not respond to the June 2005 letter (and that letter was not returned as undeliverable). In August 2005 and in February 2009, the case was remanded for additional development and to satisfy notice requirements. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if any action on his part is required. REMAND The Veteran's residuals of a right brachial plexus injury are rated 70 percent (by analogy) to the schedular rating under 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5125 (for loss of use of a major hand). In August 2005 and in February 2009, the Board asked the RO to consider the possibility of a separate rating for neurologic symptoms. The Board acknowledges, however, that as the Veteran's disability is currently rated as an amputated upper extremity, a separate rating for neurologic symptoms is not possible. Instead, the RO has properly considered whether the Veteran should be alternatively rated under the criteria for rating peripheral nerve disability, and specifically whether he is entitled to a higher (90 percent) rating under 38 C.F.R. § 4.124a, Code 8513, for complete paralysis of all radicular groups. See December 2010 supplemental statement of the case (SSOC). The Veteran's disability picture for the entire appeal period appears to be well-reflected by the evidence of record. However, a careful review of the claims file found that additional private treatment records have been identified, and have not been sought (to be associated with the record). In particular, it is noted in the Veteran's Social Security Administration records that (on dates that fall within the appeal period) he sought treatment from Dr. T.C. and from the Neurological Associates for problems related to his right arm. Although the record contains some treatment records/physician consultations letters from Dr. T.C. and the Neurological Associates, such records were submitted by the Veteran and do not represent complete copies of his treatment records. Notably, in December 2004, the Veteran submitted a VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs) for Dr. T.C.'s treatment records. It does not appear that the release was used to obtain the treatment records identified therein, and it has since lapsed. [The Board observes that when the record shows that apparently pertinent evidence is outstanding and the Board decides a matter without developing for such evidence, and the Board's decision is then appealed to the U.S. Court of Appeals for Veterans Claims, Court-endorsed Joint Motions have routinely found that the failure to seek the outstanding records is error requiring corrective action on remand.] Consequently, while the Board regrets the further delay, as the record quite clearly reflects that the Veteran has received private treatment for his right arm disability; and as such records may contain pertinent information, they must be secured, if available. See 38 C.F.R. § 3.159(c)(1). Hence, remand is required to attempt to secure these records. The Board also notes that "staged" ratings are appropriate in an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet App 505 (2007). [The Veteran is advised that under 38 C.F.R. § 3.159(c)(1), VA will make reasonable (emphasis added) efforts to obtain relevant records not in the custody of a Federal department or agency, and that it is ultimately his responsibility to ensure that the records are received if the RO is unable to obtain them. See also Wood v. Derwinski, 1 Vet. App. 190 (1991) (While VA has a statutory duty to assist the veteran in developing evidence pertinent to a claim, the veteran also has a duty to assist and cooperate with the VA in developing evidence; the duty to assist is not a one-way street). He is further advised that governing regulation provides that where evidence requested in connection with an original claim is not received within a year of the request, the claim will (emphasis added) be considered abandoned (and that the appeal in the matter would be dismissed). See 38 C.F.R. § 3.158(a).] Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify the provider(s) of any (and all) treatment or evaluation he has received for residuals of his right brachial plexus injury during the appeal period, records of which are not already associated with the claims file, and to provide any releases necessary for VA to secure any private records of such treatment or evaluation. The RO must obtain complete clinical records of all such treatment and evaluation from all sources identified by the Veteran, specifically, including from Dr. T.C. and the Neurological Associates. The Veteran should be advised that ultimately it is his responsibility to ensure that private treatment records are received if the RO is unable to obtain them. 2. The RO must ensure that the development requested above is completed in entirety, undertake any further development warranted by the results of the development sought above (to include a new VA examination, if indicated), and then re-adjudicate the claim. (If the Veteran does not respond within one year of the RO's request for identification of, and releases for, the complete records sought above, the RO must apply 38 C.F.R. § 3.158(a).) If the claim remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant 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 for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ George R. Senyk 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).