Citation Nr: 1300512 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 08-09 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to a disability rating in excess of 30 percent for service-connected multiple sclerosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in October 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Board remanded this matter in July 2011 to evaluate the current severity of the Veteran's multiple sclerosis. After obtaining a VA examination, the RO continued the denial of the claim as reflected in the July 2012 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate consideration. In a June 2012 rating decision, the RO determined that a June 1987 rating decision that had reduced the rating for multiple sclerosis to noncompensable was clearly and unmistakably erroneous. A 30 percent rating was assigned, effective September 1, 1987. The effect of the rating was that the Veteran's service-connected multiple sclerosis has been rated 30 percent since the grant of service connection. 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 After a review of the claims file, the Board finds that another remand is necessary for further development prior to adjudicating the issue on appeal. The Board remanded this issue in July 2011 in order to obtain an evaluation of the current severity of the Veteran's multiple sclerosis. The Board requested that the examiner identify the nature and severity of all ascertainable residuals of multiple sclerosis, including any impairment of motor, sensory or mental function. The examiner was also requested to fully describe the functional effects caused by the Veteran's multiple sclerosis and to provide a rationale for any opinions expressed. The Veteran's multiple sclerosis is currently evaluated as 30 percent disabling under Diagnostic Code 8018. A disability evaluation in excess of 30 percent is not directly provided under that diagnostic code; however, the Veteran may receive a disability in excess of 30 percent by considering separately the Veteran's residuals of multiple sclerosis. See 38 C.F.R. § 4.124a, Diagnostic Code 8018. In determining any additional disability, the Board must consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rate by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. The Veteran was provided with a VA neurological examination in September 2011 during which he submitted to the examiner a list of his symptoms that he attributed to his multiple sclerosis. After conducting a neurological examination, the examiner determined that the Veteran has had a very mild clinical course. He noted that in reviewing the Veteran's many complaints, he does not find any worrisome or needing attention. The examiner also stated many of the other complaints "do not suggest they are related" to multiple sclerosis. Unfortunately, the examiner did not specifically address what symptoms the examiner determined are related to his multiple sclerosis. Furthermore, he did not describe these symptoms in any detail besides stating that he did not find them worrisome or needing attention. That assessment is too vague to fully evaluate the residuals of the Veteran's multiple sclerosis. The examiner also did not state all of the symptoms he determined where not associated with multiple sclerosis or provide a supporting explanation. Accordingly, the Board finds that another VA examination is necessary so that the Board may fully evaluate all of the Veteran's residuals of multiple sclerosis. Pursuant to the prior remand, the RO/AMC asked the Veteran to provide the names and addresses of all medical care providers who have treated him for multiple sclerosis and after securing any necessary releases to obtain any outstanding records. The Veteran provide the name and address of a private physician that treated his symptoms of multiple sclerosis, but did not complete the appropriate consent form. In a November 2011 letter to his representative which has been associated with the claims folder, the Veteran enclosed a list of symptoms he experiences that he believes are related to his condition. The Veteran also indicated that he may have misunderstood the VA examiner's questions about his private physician. The Veteran provided the name of his physician and said he would be happy to allow VA to access any records. On remand, the RO/AMC should send another request for the Veteran to submit these private treatment records or to fill out the appropriate consent forms so that the RO/AMC may obtain these records on his behalf. Finally, a review of the Virtual VA (a paperless claims processing system, which instead of paper, utilizes a highly secured electronic repository to store and review every document involved in the claims process) shows that the RO granted service connection and assigned a 30 percent rating for posttraumatic stress disorder, effective from November 2, 2010. A copy of that rating decision has not been associated with the paper file. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran and to elicit from the Veteran the appropriate consent to obtain any private treatment records, to include any treatment from Dr. D.W.B. and Dr. A.T., with respect to the Veteran's multiple sclerosis or symptoms of multiple sclerosis. After securing the appropriate consent from the Veteran, VA should attempt to obtain any treatment records related to the Veteran's multiple sclerosis or symptoms of multiple sclerosis and associate them with the Veteran's VA claims folder. 2. After completing the foregoing and associating any outstanding records with the claims file, provide the Veteran with a VA neurological examination and any other examination that is deemed necessary in order to fully evaluate the Veteran's residuals of multiple sclerosis. The claims file, including a copy of this remand, must be made available to the examiner for review, and the examiner should indicate that the claims folder was reviewed in connection with the examination. All indicated evaluations, studies and tests deemed necessary should be accomplished. The examiner should review the claims file, examine the Veteran, and provide detailed information regarding the disabling effects of each symptom due to multiple sclerosis. For example, it should be noted whether he experiences headaches, motor or sensory deficits, speech disturbance, vision impairment, gait disturbance, tremors, psychotic manifestations or visceral manifestations, etc. All disabling manifestations of each should be described in detail, such as noting whether a neurologic lesion has caused mild, moderate, or severe incomplete paralysis or complete paralysis of the affected nerve. For each subjective symptom, the examiner should indicate whether there is any cause other than multiple sclerosis as an explanation for it. Furthermore, the examiner should address all of the Veteran's reported symptoms that the Veteran claims are related to his multiple sclerosis and state whether or not they are related to his multiple sclerosis with an explanation. If the examiner determines that a particular symptom is not related to multiple sclerosis, the examiner should so state. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Associate a copy of the August 2011 rating decision with the claims folder. 4. Upon completion of the foregoing, readjudicate the Veteran's claim of entitlement to an increased rating for multiple sclerosis. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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 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). _________________________________________________ M. E. LARKIN 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) (2012).