Citation Nr: 1312087 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 00-07 766 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased evaluation for service-connected median-ulnar nerve trauma with neuropathy of the right upper extremity, evaluated 10 percent disabling prior to January 14, 1999, and 20 percent disabling thereafter. 2. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran had active service from October 1976 to July 1982. These matters come before the Board of Veterans' Appeals (Board) in part on appeal from an April 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied an evaluation in excess of 10 percent for right median-ulnar nerve trauma. Original jurisdiction of the Veteran's claim resides in the VARO in Waco, Texas (the RO). In September 2001, a Travel Board hearing was held before the undersigned Veterans Law Judge, and a transcript of that hearing is of record. When this case was previously before the Board in June 2010, the Board remanded the increased evaluation claim for additional development. The Board also observed that the Veteran had raised the issue of entitlement to a TDIU in a December 2009 statement that the RO had not yet considered. Due to the United States Court of Appeals for Veterans Claims' (the Court's) holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran, the Board remanded the TDIU claim for consideration along with the increased evaluation claim. In a June 2012 rating decision, the RO increased the evaluation assigned for the Veteran's claim, characterized as median-ulnar nerve trauma with neuropathy of the right upper extremity, from 10 percent to 20 percent, effective from January 14, 1999, the date of the Veteran's claim for an increased evaluation. As this increase does not represent the maximum schedular benefit, the Veteran's appeal is not abrogated and it remains on appeal. AB v. Brown, 6 Vet. App. at 38. After the Veteran's claims were readjudicated by the RO in a June 2012 SSOC, they were returned to the Board. In October 2012, the Board, again, remanded the Veteran's claims for further development. The Board's October 2012 remand directives and the subsequent actions by the RO and VA Appeals Management Center (AMC) will be further discussed below. The Veteran's claims have been returned to the Board. Characterization of an issue on appeal The Board notes that the Veteran's January 1999 claim for an increased evaluation was filed less than a year after the receiving notice of a May 1998 rating decision, which denied her claim for an increased evaluation. In the April 1999 rating decision, the RO denied the Veteran's January 1999 claim, and a notice of disagreement was filed in August 1999. A statement of the case was issued in August 1999, and the Veteran filed a substantive appeal in April 2000. As the substantive appeal was not filed within one year of the May 1998 rating decision or within 60 days of the August 1999 statement of the case, the Veteran's January 1999 claim cannot be construed as a notice of disagreement with the May 1998 rating decision, and thus, the present appeal stems from the April 1999 rating decision. 38 C.F.R. § 20.302 (2012). As noted above, when the RO partially granted the Veteran's claim for an increased evaluation in the June 2012 rating decision, the effective date assigned for the 20 percent evaluation was January 14, 1999, the date of the Veteran's claim for an increased evaluation. As such, the rating period currently on appeal is from January 14, 1998, one year prior to the date of receipt of the Veteran's claim for an increased evaluation. 38 C.F.R. § 3.400(o)(2) (2012). Accordingly, staged ratings have been created, and the Veteran's claim is as stated on the title page. Hart v. Mansfield, 21 Vet. App. 505 (2007). In March 2013, the Veteran submitted a statement in which she asserted a claim to establish service connection for a headache disorder, claimed as secondary to service-connected median-ulnar nerve trauma with neuropathy of the right upper extremity. Since this claim has not been adjudicated in the first instance by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and thus, it is referred to the AOJ for appropriate action. Godfrey v. Brown, 7 Vet. App. 398 (1995); Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). Further, in the March 2013 submission, the Veteran also stated that she was entitled to an effective date earlier than January 14, 1999, for the assignment of a 20 percent evaluation for service-connected median-ulnar nerve trauma with neuropathy of the right upper extremity, asserting that the increased evaluation should have been assigned from 1998. As noted above, the rating period under consideration for the Veteran's claim for an increased evaluation is from January 14, 1998. Accordingly, the Veteran's assertion in this regard is merely a statement in support of her claim for an increased evaluation which is presently before the Board. The appeal is REMANDED to the RO via AMC, in Washington, DC. VA will notify the Veteran if further action is required. REMAND After review of the claims file, the Board concludes that additional development is necessary because the Board's October 2012 remand directives have not been substantially complied with. In pertinent part, the Board remanded the Veteran's claims currently on appeal in October 2012 in order to obtain clarifying opinions concerning whether the Veteran's neurologic symptomatology of her right arm was due to her service-connected median-ulnar nerve trauma with neuropathy rather than her non-service-connected right carpal tunnel syndrome, and, if such was due to her service-connected disability, whether this symptomatology rendered her unable to secure or follow a substantially gainful occupation. In requesting these opinions in October 2012, the AMC accurately conveyed the Board's October 2012 remand directives. In December 2012, the VA physician's assistant who performed the March 2012 VA examination reviewed the Veteran's claims file for a second time and offered addendum opinions addressing the Veteran's claims. First, it was noted that a March 2011 electromyography (EMG) test reflected mild, demyelinating median and ulnar neuropathies at the right wrist and elbow, respectively. The physician's assistant opined that the Veteran's median neuropathy was consistent with her history of carpal tunnel syndrome, and that "there are no found neuropathies related to her military [right arm] injury." Concerning the Veteran's TDIU claim, the physician's assistant opined that the Veteran's residuals of carpal tunnel syndrome would not impact her ability to secure or maintain gainful employment. The Board concludes that the December 2012 VA opinion is inadequate for the purpose of adjudicating the Veteran's claims. Initially, while it was stated that the Veteran's right median neuropathy was consistent with her non-service-connected right carpal tunnel syndrome, such a differentiating statement was not offered concerning the Veteran's right ulnar neuropathy. The Court has held that the Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so, although the Board may not ignore such distinctions where they appear in the medical record. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). As the December 2012 VA addendum does not fully address the medical questions posed in the Board in October 2012, another remand is necessary. To the extent that the Veteran's TDIU claim is partially dependent on the evaluation assigned for the Veteran's service-connected median-ulnar nerve trauma with neuropathy, which is being remanded, the Board finds these claims to be inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Thus, resolution of the TDIU claim at present would be premature. Id. Also, the December 2012 addendum opinion regarding the Veteran's TDIU claim is inadequate, as such is premised on whether the Veteran's non-service-connected right carpal tunnel syndrome, rather than her service-connected median-ulnar nerve trauma with neuropathy, rendered her unable to secure or follow a substantially gainful occupation. Another remand is necessary in order to obtain an adequate opinion concerning whether the Veteran has been rendered unable to secure or follow a substantially gainful occupation by her service-connected disabilities. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Where, as here, the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate VA clinician to determine the nature, manifestations and current level of severity of her service-connected median-ulnar nerve trauma with neuropathy of the right upper extremity. After a review of the complete record, to include the Veteran's VA claims file and Virtual VA file, as well as the completion of any testing deemed necessary, to include an EMG and NCS, the examiner must address the following: a. Identify all neurologic manifestations of the Veteran's service-connected median-ulnar nerve trauma with neuropathy, to include the severity and frequency of such, throughout the pendency of the appeal from January 1998. b. Any neurological symptomatology deemed not due to the service-connected median-ulnar nerve trauma with neuropathy should be specifically clinically distinguished, if possible. If such distinction is not clinically possible, the examiner should so state, including the reason why. Specifically, the examiner should state whether the Veteran's right medial and ulnar neuropathies, as identified from the March 2011 EMG, are due to her service-connected median-ulnar nerve trauma with neuropathy as opposed to any non-service-connected disability, to include right carpal tunnel syndrome. c. Furnish an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's service-connected median-ulnar nerve trauma with neuropathy of the right upper extremity renders her unemployable. A complete rationale for all opinions expressed must be provided. If any requested opinion cannot be rendered without resort to mere speculation, the reason(s) for this should be stated. 2. Thereafter, adjudicate the Veteran's claim for an increased initial evaluation for service-connected median-ulnar nerve trauma with neuropathy of the right upper extremity. If the benefit sought is not granted to the fullest extent, the Veteran and her representative should be provided a supplemental statement of the case and allowed an appropriate opportunity to respond thereto. 3. Thereafter, undertake any development deemed appropriate in order to fully develop and adjudicate the Veteran's TDIU claim, to include obtaining any additional VA opinion(s) deemed warranted. If the evidence shows that the Veteran is unable to secure or follow a substantially gainful occupation by reason of a service-connected disability or disabilities, and the percentage requirements of 38 C.F.R. § 4.16(a) are not met, then the RO must refer the matter to the Director of Compensation and Pension Service for consideration of entitlement to a TDIU on an extraschedular basis. If this is the case, the RO must include with that referral, a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on this issue. In any event, if TDIU is not granted, the RO must provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. Thereafter, the RO must return the Veteran's claims to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ U. R. POWELL 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).