Citation Nr: 1319877 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 10-03 490 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 30 percent for posttraumatic arthritis of the left elbow with residual malunion, fracture of the left ulna with dislocation of the radial head, postoperative, with ulnar nerve damage (left elbow disability). 2. Entitlement to an initial, compensable rating for post-surgical changes in distal left ulna (left wrist disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to June 1972. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2009 rating decision in which the RO, inter alia, denied a rating in excess of 30 percent for the left elbow disability, as well as granted service connection and assigned an initial, noncompensable rating for post-surgical changes in distal left ulna, effective December 9. 2008. The Veteran filed a notice of disagreement (NOD) in March 2009. A statement of the case (SOC) was issued in December 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2010. Because the appeal involves disagreement with the initial rating assigned following the award of service connection for the left wrist disability, the Board has characterized this matter 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 March 2013, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is also of record. In addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are not relevant to the issues on appeal. For reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action on the claims on appeal is warranted. The Veteran served as a U.S. Navy boatswain's mate. He fractured his left elbow in March 1971 and underwent surgery for malunion of the fracture that included partial excision of the radial head, posttraumatic arthritis, and ulnar nerve damage. The Veteran is right handed. The Veteran contends that his left elbow and left wrist disabilities are more severe than are contemplated by the current ratings. The disabilities are currently rated as 30 percent disabling under Diagnostic Code 5211 for ulna impairment with nonunion and loss of bone substance and noncompensable under Diagnostic Code 5215 for limitation of motion of the wrist. The Veteran's most recent compensation and pension examination was in December 2008, with reference to X-rays obtained in 1994. The Veteran underwent orthopedic and rheumatology examinations at a VA clinic in November 2010. Concurrent X-rays were obtained but neurological studies were not ordered at the Veteran's request. The examination and consultation reports are of record. In a March 2009 notice of disagreement and during the March 2013 Board hearing, the Veteran asserted that his service-connected left elbow and left wrist disabilities have worsened with increased pain, limitation of motion, popping, locking and giving way of the joint, and loss of grip strength. He stated that he avoids use of his left arm and that VA clinicians told him that the radial head had completely disappeared. He testified that he continues to receive treatment at a VA clinic but has not had recent treatment for the left elbow and wrist. To ensure that the record reflects the current severity of the Veteran's left elbow and wrist disorders and in light of the Veteran's contentions of increased and additional symptomatology, the Board finds that a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed to properly evaluate the service-connected disability under consideration. Accordingly, the RO should arrange for the Veteran to undergo VA orthopedic and neurological examination(s), by (an) appropriate physician(s) at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination(s), without good cause, may well result in denial of the claim(s) for higher ratings. See 38 C.F.R. § 3.655(a),(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. Id. If the Veteran fails to report to the scheduled examination(s), the RO must obtain and associate with the claims file copies of any notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and the record before the examiner is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As regards VA medical records, the claims file currently includes outpatient treatment records from the Raleigh, North Carolina Community Based Outpatient Clinic (CBOC) and the Durham, North Carolina VA Medical Center dated from May 2009 to November 2010. As some treatment appears to be ongoing, more recent records from this facility may exist. The Board 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 above-noted facility all outstanding records of treatment of the Veteran since November 2010. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regard to requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide additional 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 to obtain, any outstanding, pertinent private medical records. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). 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 claims for higher ratings for the left elbow and left wrist. The RO's adjudication of each claim should include consideration of whether "staged" rating of the Veteran's 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) (for the increased rating claim) or Fenderson, supra (for the initial rating claim), as appropriate, is warranted. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Raleigh CBOC and Durham VAMC any outstanding, pertinent records of evaluation and/or treatment of the Veteran since November 2010. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/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 enable it to obtain any additional evidence pertinent to entitlement to increased ratings for the left elbow and/or left wrist that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any 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 and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA orthopedic and neurological examination(s) by appropriate VA physician(s) at a VA medical facility. An examination by a single examiner is permissible if all orthopedic and neurological symptoms are assessed. The entire claims file, to include complete copy of the REMAND, along with copies of any relevant records on Virtual VA (if the examiner does not have access) must be made available to the individual(s) designated to examine the Veteran, and the examination report(s) should include discussion of the Veteran's documented medical history and assertions. The examiner(s) should identify all current manifestations of the Veteran's service-connected left elbow and wrist disabilities, to include any symptoms affecting the Veteran's left hand and/or forearm. The examiner(s) should conduct range of motion testing of the left elbow and wrist (expressed in degrees). With respect to each disability, the examiner(s) 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 left elbow and wrist. 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 due to pain and/or any other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner(s) should express any additional functional loss in terms of additional degrees of limited motion. The examiner should also assess the Veteran's associated neurologic symptoms including loss of grip strength or partial paralysis. Appropriate diagnostic testing should be accomplished if medically necessary to complete a full assessment. The physician(s) should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 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 completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim for a rating in excess of 30 percent for left elbow disability, and for an initial, compensable rating for left wrist disability. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the claim tor increased rating for the left elbow disability, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate each claim in light of all pertinent evidence and legal authority, to include consideration of whether staged rating, pursuant to Hart or Fenderson, as appropriate, is warranted. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC 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, and 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