Citation Nr: 1300342 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 06-28 889 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to higher combined ratings for multiple sclerosis and associated residuals: 30 percent prior to November 9, 2006; 50 percent from November 9, 2006, through September 1, 2009; 60 percent from September 2, 2009, through August 24, 2010; and 70 percent from August 25, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and her mother ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from April 2000 to July 2003. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2005 rating decision in which the RO, inter alia, granted service connection and assigned an initial rating of 30 percent for multiple sclerosis with optic neuritis, left eye, and unsteady gait, effective July 22, 2004. In June 2005, the Veteran filed a notice of disagreement with the initial rating. A statement of the case was issued in August 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in September 2006. In a May 2007 rating decision, the RO granted a separate 30 percent rating for urinary retention, effective November 9, 2006. In September 2008, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In November 2008, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. In a March 2009 rating decision, the RO granted a total disability rating based on individual unemployability due to service-connected disability (TDIU), effective September 17, 2008. After completing further action, in January 2010, the RO awarded a separate, noncompensable rating for bilateral optic neuritis with mild loss of visual acuity, effective July 22, 2004; and continued to deny the claim for higher rating (as reflected in a September 2010 supplemental statement of the case). Subsequently, however, in an October 2010 rating decision, the RO granted a separate 10 rating, each, for weakness of the right upper and lower extremities, effective September 2, 2009' as well as granted a separate 10 percent rating, each, for weakness of the left upper and lower extremities, effective August 25, 2010. The RO also eliminated the separate 30 percent rating for urinary retention (which had been awarded effective November 9, 2006) and recharacterized the Veteran's "multiple sclerosis with an unsteady gait" as "multiple sclerosis with bladder dysfunction" (which had been granted effective July 22, 2004). The RO then returned the matter on appeal to the Board for further consideration. In January 2011, the Board again remanded the claim on appeal to the RO, via the AMC, for further action, to include additional development of the evidence. Specifically, the RO was asked to obtain a copy of the two VA compensation examinations that the Veteran underwent in December 2008 and, more broadly, to obtain copies of the Veteran's VA medical records from after July 22, 2010. The RO was also directed to attempt to obtain records from the Social Security Administration (SSA) that were generated in connection with the Veteran's December 2009 award of disability benefits from that agency. All of these records were successfully obtained on remand. In the January 2011 remand, the Board also directed the RO to take corrective action with respect to that portion of the October 2010 rating decision in which the RO/AMC eliminated the separate 30 percent rating for urinary retention, as that RO action was deemed an improper reduction because it did not follow the proper procedures pursuant to 38 C.F.R. § 3.105(e). In a February 2012 rating decision, the AMC restored the separate 30 percent rating for urinary retention, effective November 9, 2006, and reverted to the prior characterization of the multiple sclerosis disability as "multiple sclerosis with an unsteady gait." The RO otherwise continued to deny the claim (as reflected in a February 2012 supplemental statement of the case). In prior adjudications, VA has characterized the issue on appeal as "entitlement to an initial rating in excess of 30 percent for multiple sclerosis." The Board notes, however, that 38 C.F.R. § 4.124a, under which multiple sclerosis is rated, generally directs that neurological conditions and convulsive disorders be rated based on disability from the disease itself and its residuals. If these ratings do not equal at least 30 percent, then Diagnostic Code 8018 directs that a minimum rating of 30 percent be assigned. Thus, rating the Veteran's multiple sclerosis necessarily involves evaluating the severity of those disabilities that are considered residuals of, or secondary to, the multiple sclerosis. The Board has therefore recharacterized the issue as reflected on the title page to reflect that the issue on appeal involves both the multiple sclerosis itself, as well as the associated symptomatology that is actually being evaluated in connection with her increased rating claim. For the sake of brevity, Board has characterized the issue as involving "multiple sclerosis and associated residuals." However, as indicated, the combined rating for these problems has varied over time, and the issue has been characterized to reflect the various "stages" at issue in this appeal, as follows:: Prior to November 9, 2006, the Veteran was in receipt of (1) a 30 percent rating for multiple sclerosis with bladder dysfunction; and (2) a 0 percent (noncompensable) rating for bilateral optical neuritis, with mild loss of visual acuity. The combined rating for these disabilities was 30 percent. See 38 C.F.R. § 4.25, Table I. From November 9, 2006, through September 1, 2009, the Veteran was in receipt of (1) a 30 percent rating for multiple sclerosis with bladder dysfunction; (2) a 30 percent rating for urinary retention; and (3) a 0 percent rating for bilateral optical neuritis, with mild loss of visual acuity. The combined rating for these disabilities was 50 percent. See id. From September 1, 2009, through August 24, 2010, the Veteran was in receipt of (1) a 30 percent rating for multiple sclerosis with bladder dysfunction; (2) a 30 percent rating for urinary retention; (3) a 10 percent rating for weakness of the right upper extremity; (4) a 10 percent rating for weakness of the right lower extremity; and (5) a 0 percent rating for bilateral optical neuritis, with mild loss of visual acuity. The combined rating for these disabilities was 60 percent. See id. From August 25, 2010, the Veteran has been in receipt of (1) a 30 percent rating for multiple sclerosis with bladder dysfunction; (2) a 30 percent rating for urinary retention; (3) a 10 percent rating for weakness of the right upper extremity; (4) a 10 percent rating for weakness of the left upper extremity; (5) a 10 percent rating for weakness of the right lower extremity; (6) a 10 percent rating for weakness of the left lower extremity; and (7) a 0 percent rating for bilateral optical neuritis, with mild loss of visual acuity. The combined rating for these disabilities is 70 percent. See 38 C.F.R. §§ 4.25, Table I, 4.26. For the reasons expressed below, the matter on appeal is again being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on her part, is required. REMAND Unfortunately the Board finds that further RO action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In its November 2008 remand, the Board noted that the Veteran had reported an increase in the severity of most of her multiple sclerosis manifestations, and remanded the Veteran's claim for a new examination. The Veteran reported at her September 2008 Board hearing that, among her worsening symptoms, she was experiencing constant pain, numbness, tingling, and eye problems. She reported that, on bad days, she was unable to walk. The Board further notes that the Veteran's VA medical records reflect complaints of symptomatology that may be associated with her multiple sclerosis, but have not yet been evaluated as such. For example, a June 2008 VA neurology note lists symptoms, including repeated bruising and welts associated with injections; persistent numbness all over her body; a feeling of tightness, especially in her fingers, feet, and legs; a band sensation around her abdomen; swallowing difficulties, with sporadic choking on certain foods; memory loss; and fatigue. Due to symptoms such as these, which suggest a possible progression of the Veteran's multiple sclerosis, the Board remanded this case in November 2008 for, among other things, a new examination. In part, the Board's remand directed that "[t]he VA examiner should clearly identify all current problems associated with the veteran's multiple sclerosis (other than urinary retention), and indicate whether any such problem(s) constitute(s) a separately ratable disability." In December 2008, the Veteran was scheduled for a general medical examination and an eye examination. The examination request reads as follows: Veteran claims individual unemployability. Please conduct general medical examination with special attention to the following service connected disabilities: Multiple sclerosis with optic neuritis left eye and unsteady gait. Urinary retention associated with multiple sclerosis with optic neuritis left eye and unsteady gait. n Please report functional limitations imposed on veteran by each disability found on examination whether the disability is service connected or non service connected. The examination request clearly reflects that this examination was being conducted in connection with the Veteran's claim for a TDIU. While the December 2008 general medical examination report does list the complaints that the Veteran had identified in connection with her multiple sclerosis, the examination is essentially limited to an evaluation of the Veteran's extremities, including limitations in her ability to walk and balance, and neurological symptomatology. There is no evaluation of the Veteran's complaints of swallowing difficulties with sporadic choking, memory loss, general weakness, and fatigue, for example. Thus, while this examination report was deemed adequate for purposes of determining whether a TDIU was warranted, the Board finds that it does not reflect a clear and complete picture upon which to assess the severity of the Veteran's multiple sclerosis and its various manifestations. As such, the December 2008 TDIU examination does not satisfy the Board's November 2008 remand instructions, and a remand for a new examination is necessary. See Stegall, supra. See also 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the RO should arrange for the Veteran to undergo VA examination(s), by appropriate physician(s), at a VA medical facility. The Veteran is hereby advised that failure to report for any scheduled VA examination (s), without good cause, may result in denial of the claim for a higher initial rating (as the claim, emanating from an award of service connection, will be considered on the basis of the evidence of record, which, as noted above, is insufficient to rate the disability under consideration. See 38 C.F.R. § 3.655 (2012)). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report to any scheduled examination(s), the RO must obtain and associate with the claims file any copy(ies) of notice(s) of the date and time of the examination(s) sent to the Veteran by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo examination, the RO should obtain and associate with the claims file all outstanding VA medical records. In this regard, the Board points out that the record reflects that the Veteran has received medical treatment at the Pittsburgh VA Medical Center (VAMC). The most recent VA records are dated January 2012. 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). Hence, the RO must obtain all outstanding pertinent VA medical records from the above-noted facility, following the procedures prescribed in 38 C.F.R. § 3.159 (2012). To ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that she has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. The RO should obtain from the Pittsburgh VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since January 2012. In requesting these records, the RO must follow the current procedures of 38 C.F.R. § 3.159 as regards requesting records from Federal facilities. 2. The RO should send to the Veteran and her representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO's letter must clearly explain to the Veteran that she has a full one-year period for response (although VA may adjudicate the claim within the one-year period). 3. If the appellant responds, the RO should assist her in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo examination by one or more appropriate physicians, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND must be made available to each physician designated to examine the Veteran, and each examination report should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished (with all findings made available to the physician(s) prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician(s) should provide a detailed report as to the existence and extent or severity, as appropriate, of all current manifestations of the Veteran's multiple sclerosis. For each identified impairment, the physician should indicate whether such constitutes a separately ratable disability; provide an assessment of the severity or the disability; and, to the extent possible, provide information as to the date of onset of the disability. In particular, the examiner(s) should describe all motor, sensory, mental, or vision impairment; any disturbances of swallowing, gait, or tremors; and any bladder symptomatology or visceral impairment. The examiner(s) should also discuss the Veteran's complaints of fatigue and should diagnose any associated disability. The physician(s) a should also indicate whether there is complete or incomplete paralysis, or complete or partial loss of use, of any extremity; and, if less than complete, whether such impairment is best described as mild, moderate, or severe. The examiner(s) should set forth all examination findings in a printed (typewritten) report. 5. If the Veteran fails to report to any scheduled examination(s), the RO must 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, the RO must ensure that the requested actions have 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, the RO should adjudicate the claim for an increased rating for multiple sclerosis in light of all pertinent evidence and legal authority. 8. If the benefit sought on appeal remains denied, the RO should furnish to the Veteran and her representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2012). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).