Citation Nr: 1312075 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 06-07 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased rating in excess of 30 percent for status post cubital tunnel release and revision decompression, ulnar nerve, left elbow (non-dominant). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1999 to September 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which, in pertinent part, granted an increased rating of 10 percent for the status post cubital tunnel release and revision decompression, ulnar nerve, left elbow (non-dominant) (left elbow disability). Jurisdiction was subsequently transferred to the Cleveland, Ohio, RO. The Veteran provided testimony during a hearing before the Board in November 2007 at the RO. A transcript is of record. In January 2008 and May 2011, the Board remanded the claim for additional development. In a September 2011 rating decision, an increased rating of 30 percent was granted for the left elbow disability, effective February 15, 2005. A claimant is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claim for a higher rating for the left elbow disability remains before the Board. The Board notes that in a January 2012 rating decision, the RO granted service connection for limitation of motion of the left elbow. This decision was not appealed and, therefore, will not be considered herein. The issues of service connection for an acquired psychiatric disability, to include bipolar disorder, for migraines, and for hearing loss, as well as a claim for dependency benefits 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 Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In an October 2011 application for entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU), the Veteran indicated that he had received VA treatment for his service-connected elbow for all of 2011. In an October 2011 report of contact, it was noted that he reported that he was going to have elbow surgery and had a pre-op appointment later that month. VA treatment records have not been obtained and associated with the claims file or Virtual VA. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). As this evidence is relevant to the Veteran's claim, all relevant records in VA's possession must be obtained. Pursuant to the May 2011 Board remand, the Veteran was provided a VA examination in September 2012 to assess the severity of his left elbow disability. The examiner described the left elbow disability, diagnosed as ulnar nerve neuropathy, as moderate. The examiner, however, also stated that he was not able to use his left arm (elbow/hand) with anything physical. The examiner's statement raises the question of whether the Veteran's left elbow disabilities result in the loss of use of his hand. Loss of use of a hand will be held to exist when no effective function remains other than that which would be equally well-served by an amputation stump at the site of election below the elbow with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350(a)(2), 4.63 (2012). Given the complexity of this case, the Board requests that a neurologist provide a new VA examination to address this issue of whether his service-connected disabilities cause loss of use of the hand and address the current severity of the left elbow disability. Moreover, in the September 2011 rating decision, which was issued to the Veteran that same month, the RO stated that the claim was going to be referred to the Director of Compensation and Pension for consideration of entitlement to an extraschedular rating. There is no indication that the claim was sent to the Director of Compensation and Pension for either issue. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records and associate them with the claims file or Virtual VA. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. Once the above development has been completed, afford the Veteran a new VA examination with a qualified neurologist to assess the current severity of his left elbow disability and determine whether his service-connected disabilities cause the loss of use of his left hand (including whether the service-connected disabilities create a situation in which the Veteran would be equally well served by amputation at the site of election). The claims file and any relevant files within Virtual VA must be provided to and reviewed by the examiner. The examiner should provide an opinion as to the current severity of the left elbow ulnar nerve disability, including a discussion of the Veteran's reported symptomatology, and, if possible, characterize the disability as mild, moderate, or severe in nature. The examiner is requested to specifically comment on the impact of the Veteran's left elbow disabilities on his ability to obtain and maintain employment for which his education and experience would otherwise qualify him. Then, the examiner is requested to opine as to whether the Veteran's service-connected left elbow disabilities cause loss of use of the left hand. The examiner should specifically consider whether the Veteran would be equally well served by an amputation at the site of election below the elbow with prosthesis in place. The examiner should provide a rationale for all opinions provided. 3. Once the above is completed, the claim should be referred to VA's Director of Compensation and Pension Service or Under Secretary for Benefits to consider entitlement to an extraschedular rating for the left elbow disability. 4. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate 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 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 2002 & Supp. 2012). _________________________________________________ JAMES L. MARCH 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).