Citation Nr: 1317660 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 07-05 209 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for service-connected status post anterior fusion C5-6 with limitation of motion, prior to May 28, 2009. 2. Entitlement to a rating in excess of 20 percent for service-connected status post anterior fusion C5-6 with limitation of motion, from May 28, 2009. 3. Entitlement to an initial rating in excess of 10 percent for service-connected T1-2 muscle spasm with mild limitation of motion, prior to April 2, 2010. 4. Entitlement to a rating in excess of 20 percent for service-connected T1-2 muscle spasm with mild limitation of motion, from April 2, 2010. 5. Entitlement to an initial rating in excess of 10 percent for service-connected right knee strain with degenerative changes. 6. Entitlement to an initial, compensable rating for service-connected status post fracture right 5th metacarpal. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and R.S. ATTORNEY FOR THE BOARD Maddox, April INTRODUCTION The Veteran served on active duty from May 1985 to May 1989, and from May 1989 to May 2005. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2005 rating decision in which the RO, inter alia, granted service connection and assigned initial 10 percent ratings, each, for right knee strain with degenerative changes, T1-2 muscle spasm with mild limitation of motion, and status post anterior fusion C5-6 with limitation of motion; as well as granted service connection and assigned an initial 0 percent (noncompensable) rating for status post fracture right 5th metacarpal. These awards were made effective June 1, 2005. The Veteran filed a notice of disagreement with the initial assigned ratings in February 2006. The RO issued a statement of the case in January 2007. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in February 2007. In August 2009, the Veteran and his uncle testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. Because the Veteran disagreed with the initial ratings assigned following the awards of service connection for his right knee strain with degenerative changes, T1-2 muscle spasm and mild limitation of motion, for status post anterior fusion C5-6 with limitation of motion, and for status post fracture of the right 5th metacarpal, the Board characterized these claims in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In February 2010, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC), in Washington, DC, for additional development. On remand, the RO, in a November 2010 rating decision, granted a 20 percent rating for the T1-2 muscle spasm with mild limitation of motion, effective May 28, 2009, as well as granted a 20 percent rating for status post anterior fusion C5-6 with limitation of motion, effective April 2, 2010. In a November 2010 supplemental statement of the case, the RO denied a rating in excess of 10 percent rating for the right knee disability, a compensable rating for the right 5th metacarpal disability, and ratings in excess of 20 percent for the thoracic and cervical spine claims. These matters were subsequently returned to the Board for further appellate consideration. In September 2012, the Board, once again, remanded the claims on appeal to the RO, via the AMC, for additional development. As was noted in the September 2012 remand, although the RO awarded higher ratings for the cervical and thoracic spine disabilities during the pendency of the appeal, as even higher ratings are available before and after the effective date for the awards of higher ratings, and a veteran is presumed to seek the maximum available benefit for a disability, the Board has characterized the appeal as to these disabilities as encompassing the first four matters reflected on the title page. Id.; AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. For the reasons expressed below, the matters on appeal are, again, being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the record reveals that further RO action in this appeal is warranted. As was noted in the September 2012 Board remand, the claims file currently includes outpatient treatment records from the VA Medical Center (VAMC) in Denver, Colorado, dated through May 2009. According to an April 2010 VA joints examination report, the Veteran was seen in VA's ambulatory clinic in January 2010 with complaints of difficulty turning his head. He was also seen at that facility in March 2010 with complaints of bilateral knee pain. The November 2010 supplemental statement of the case notes that the evidence in this case includes "Outpatient Treatment Records, Denver VA Medical Center, 08/23/05 - 10/25/10 (reviewed electronically)." At the time of the September 2012 Board remand, this evidence did not appear in the Veteran's paper claims file or in his Virtual VA electronic record. It was noted that, while this evidence may have been reviewed directly from the Veteran's computerized patient record system (CPRS) file, the Board does not have access to that system. Thus, the Board found that there was pertinent VA medical evidence that has not been associated with the Veteran's claims file. In the September 2012 remand the Board requested that the RO obtain from the Denver VAMC and associated facilities all outstanding, pertinent records of evaluation and/or treatment of the Veteran, to particularly include records dated from August 2005 to October 2010. A review of the Virtual VA paperless claims file shows a December 2012 entry entitled "CAPRI" which contains only four pages of VA treatment records dated from September 2005 to November 2005. In a January 2013 supplemental statement of the case it was noted that the evidence in this case included "Treatment Records from the VA Medical Center Denver CO dated August 23, 2005, to October 18, 2012." Unfortunately, review of both the paper and electronic, paperless (Virtual VA) claims file is again negative for VA treatment records dated through October 2012. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Where remand orders of the Board are not fully implemented, the Board itself errs in failing to ensure compliance. Id. The Board also 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 should obtain from the Denver VAMC and any associated facilities, all outstanding, pertinent records of evaluation and/or treatment of the Veteran, to particularly include records dated from August 2005 to October 2010, and thereafter, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Further, to ensure that all due process requirements are met, and that the record is complete, while these matters are on remand, the RO should give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he 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). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, copies of outstanding, pertinent private medical records Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current 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 (to include arranging for the /veteran to undergo any further examination(s), if appropriate) prior to adjudicating the claims on appeal. The RO's adjudication of the claims should include consideration, or continued consideration (as appropriate), of whether "staged" rating-assignment of separate ratings for distinct periods of time, based on the facts found-pursuant to Fenderson (cited above), is warranted Accordingly, these matters are hereby REMANDED for the following actions: 1. Obtain from the Denver VAMC and associated facilities all outstanding, pertinent records of evaluation and/or treatment of the Veteran, to particularly include records dated from August 2005 to October 2010, and thereafter. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to obtain any additional evidence pertinent to the appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, copies of outstanding, pertinent, private medical records Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. 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. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted (to include arranging for the Veteran to undergo any further examination(s), if appropriate) readjudicate the claims on appeal in light of pertinent evidence and legal authority (to include consideration, or continued consideration (as appropriate), of whether staged rating, pursuant to Fenderson (cited above) is warranted. 6. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his 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 he 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).