Citation Nr: 1304416 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-12 850 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to a rating in excess of 10 percent for an osteoid osteoma of the right tibia. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from March 1993 to September 1994. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2010 rating decision in which the RO granted an increased rating of 10 percent for an osteoid osteoma of the right tibia. In February 2010, the Veteran filed a notice of disagreement (NOD) with the assigned disability rating. A statement of the case (SOC) was issued in August 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2010. Although the RO granted a higher rating of 10 percent for an osteoid osteoma of the right tibia, the claim for a still higher schedular rating during this appeal period remains for adjudication. A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). In November 2012, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. For the reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the Veteran when further action, on her part, is required. REMAND The Board's review of the claims file reveals that further RO action on the claim on appeal is warranted. In hearing testimony, the Veteran stated that her right tibia, knee, and ankle symptoms including pain, weakness, giving way, and reduction in mobility had become more severe since the last VA examination in October 2010. Considering the more than 2-year period since the last VA examination of the right tibia, in light of the Veteran's claims of worsening, the Board finds that a more contemporaneous VA examination-with findings responsive to the applicable rating criteria and other considerations-is needed to evaluate the right lower leg disability. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous). Hence, the RO should arrange for the Veteran to undergo VA examination, by an appropriate medical professional, at a VA medical facility. The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, shall result in denial of the claim for increase. See 38 C.F.R. § 3.655(b) (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. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to her by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo examination, to ensure that the record before the examiner is complete, and that all due process requirements are met, the RO should obtain and associate with the claims file all outstanding, pertinent records. During the Board hearing, the Veteran stated that she was receiving private medical care and that records of this care would show a worsening of the disability. Accordingly, the RO should give the Veteran another opportunity to present 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 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). In its letter, the RO should specifically request that the Veteran provide, or provide appropriate authorization(s) for the RO to obtain, all outstanding, pertinent records from the private medical care provider mentioned during the hearing. The paper and electronic claims files and the Veteran's testimony do not indicate that she is receiving regular VA outpatient medical care. The actions identified herein are consistent with the duties to notify and assist 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 VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication of the claim for higher rating should include consideration of whether "staged rating" of the disability (assignment of different ratings for distinct periods of time, based on the facts found) pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007). The RO should consider the claim in light of all pertinent evidence added to the record since the last adjudication of the claim. 1. Send to the Veteran and her representative a letter requesting that the Veteran provide sufficient 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. In the letter, specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, all outstanding, pertinent records from the private medical care provider who treated her. The RO's letter should also clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claims within the one-year period). 2. If the Veteran 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 Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, schedule the Veteran for a VA orthopedic examination by an appropriate medical professional at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner, and the 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 examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should conduct range of motion testing of the right knee and ankle (expressed in degrees). The examiner should 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 the right tibia, knee, and ankle. 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 of the right lower leg 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. An assessment of functional loss must include the impact, if any, on the Veteran's capacity for gainful employment. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 5. To help avoid future remand, ensure that all 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). 6. After accomplishing all requested action, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal. If the Veteran fails to report to the scheduled examination, in adjudicating the claim for increased rating, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate the claim in light of all pertinent evidence (to particularly include evidence added to the record since the last adjudication of the claim), and legal authority (to include consideration of whether staged rating, pursuant to Hart (cited above) is appropriate. 7. If the benefit sought on appeal remains denied, 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 Veteran 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). (CONTINUED ON NEXT PAGE) This claim 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).