Citation Nr: 1322267	
Decision Date: 07/11/13    Archive Date: 07/18/13

DOCKET NO.  02-15 276A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to a disability evaluation in excess of 10 percent for the residuals of a fracture of the left distal fibula after May 1, 2005,

2.  Entitlement to a disability evaluation in excess of 20 percent for the residuals of a left brachial plexus injury.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

K. Neilson, Counsel


INTRODUCTION

The Veteran served on active duty from November 1972 to January 1999. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, wherein the RO denied a compensable rating for service-connected residuals of a fracture of the left distal fibula.  By rating action dated in July 2006, the RO increased the Veteran's left leg disability rating to 10 percent, effective May 2, 2005.  This matter is also on appeal from an April 2006 rating decision which denied a rating higher than 20 percent for residuals of a left brachial plexus injury 

The Board notes that the procedural history of this case, which has been described at length in the Board's prior decisions, is a lengthy one, involving multiple actions by the Board and an appeal to and remand from the United States Court of Appeals for Veterans Appeals (Court).  The case was most recently before the Board in March 2013, at which time that Board denied entitlement to a compensable evaluation for the residuals of a fracture of the left distal fibula prior to May 2, 2005, and remanded the issues of entitlement to a disability evaluation in excess of 10 percent for the residuals of a fracture of the left distal fibula after May 1, 2005, and to a disability evaluation in excess of 20 percent for the residuals of a left brachial plexus injury for further development.  After undertaking to complete the requested development, the remanded matters were readjudicated via a May 2013 supplemental statement of the case (SSOC) and the matters were returned to the Board that same month.

(The decision below addresses the issue of entitlement to a disability evaluation in excess of 10 percent for the residuals of a fracture of the left distal fibula after May 1, 2005.  The issue of entitlement to a disability evaluation in excess of 20 percent for the residuals of a left brachial plexus injury is addressed in the remand that follows the Board's decision.)


FINDING OF FACT

Since May 2, 2005, the evidence shows that the Veteran's residuals of a fracture of the left distal fibula are manifested by left ankle pain that is aggravated by prolonged walking, especially on uneven terrain, climbing stairs, and driving a car and by decreased plantar motion, limited to no less than 30 degrees with pain; a diagnosis of arthritis, confirmed by X-ray, is recorded in the treatment records.  

CONCLUSION OF LAW

Since May 2, 2005, the criteria for a disability rating in excess of 10 percent for residuals of a fracture of the left distal fibula, now diagnosed as traumatic arthritis, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5262, 5271 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim.  It also requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is specifically to inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.

The VCAA notice requirements apply to all five elements of a service connection claim.  These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Regarding VA's duty to notify with respect to increased rating claims, the VCAA requires only generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010).

In the instant case, the Veteran was apprised of VA's duties to both notify and assist through correspondence dated in February 2005 and August 2008.  A review of these letters shows that they comply with the requirements of Vazquez-Flores, supra.  As to any error with respect to the timing of notice, the present matter was readjudicated in several SSOCs and a rating decision and the Veteran was in fact awarded an increased rating.  Thus, any error with respect to the timing of notice was effectively cured in this case.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323   (Fed. Cir. 2007) (holding that timing error can be effectively "cured" by providing any necessary VCAA notice followed by a readjudication of the claim). 

Regarding the duty to assist, the Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim.  All available relevant evidence pertaining to the Veteran's claim has been obtained.  The evidence includes his VA treatment records, VA examination reports, records from the Naval Hospital in Jacksonville, Florida, and lay statements in support of his claim, to include his hearing testimony.  Further, in accordance with the Board's March 2013 remand, the agency of original jurisdiction (AOJ) undertook to obtain records from any non-VA source identified, to include any TRICARE records and other medical records possibly located at the medical facility at the Jacksonville Naval Base or Air Station, Jacksonville, Florida.  However, the Veteran did not respond with the necessary authorizations to release such private records to VA so as to enable VA to seek to obtain any such records.  The Veteran is reminded that the duty to assist is not a one-way street and it is he who is ultimately responsible for submitting private records to VA.  Thus, the Board finds that that the AOJ complied with the terms of its earlier remand and that no further assistance is necessary in this regard.

The AOJ has also obtained a medical opinion in connection with the Veteran's claim.  A review of the examination report shows that the VA examiner conducted a thorough examination of Veteran and considered the Veteran's subjective complaints related to his disability.  The Board is satisfied that the examination report, along with the VA and private treatment reports of record, contain sufficient evidence by which to evaluate the claim decided herein in accordance with the rating criteria and throughout the appeal period.  Thus, the Board has properly assisted the Veteran by affording him an adequate VA examination.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Cox v. Nicholson, 20 Vet. App. 563 (2007).  

II.  Analysis

The Veteran asserts that his service-connected residuals of a fracture of the left distal fibula have more disabling than currently rated.  He contends that a rating in excess of 10 percent is warranted after May 1, 2005.  Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  "Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern."  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings.  Id. For increased rating claims, staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned."  38 C.F.R. § 4.7 (2012).

A review of the record shows that since May 2, 2005, the Veteran's service connected residuals of a fracture of the left distal fibula have been rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5262, which pertains to impairment of the tibia and fibula.  The Board notes, however, that in a January 2007 Board decision it was indicated that because the evidence failed to demonstrate nonunion or malunion of the tibia or fibula, but did contain x-ray findings of arthritis, the Veteran's residuals of his left distal fibula fracture were best rated under the criteria pertaining to traumatic and osteoarthritis.  Although the relevant portion of the Board decision was vacated by the Court, because the Board must consider the propriety of assigning a higher, or separate, rating under all potentially relevant DCs, see Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995), the Board will address whether the Veteran is entitled to a rating in excess of 10 percent at any point since May 2, 2005, under any potentially relevant DC.

Evidence relevant to determining the appropriate disability rating for the Veteran's residuals of his left distal fibula fracture shows that on May 2, 2005, the Veteran presented to the Naval Hospital in Jacksonville, Florida, with complaints of left ankle pain, which had become progressively worse in last six months.  He reported difficulty on stairs and uneven ground and stated that he had twice fallen walking down stadium stairs, which he believed was due to ankle instability.  Examination of the left ankle revealed tenderness and a slight decrease in range of motion, as evidence by dorsiflexion to 40 degrees and plantar flexion to 120 degrees.  (The Board will assume that the plantar flexion measurement was referenced to zero degrees vertical and conclude that plantar flexion is 30 degrees using the VA reference.)  There was no deformity, erythema, or swelling.  The examiner noted the Veteran's history of a left fibula fracture in 1995, diagnosed "ankle pain - like post-traumatic arthritis," and prescribed Motrin.  X-rays taken later that month revealed a small amount of degenerative spurring at the tibiotalar joint and a very small plantar spur.  No fracture was noted.  The radiologist stated that "perhaps this is related to remote trauma."  A June 2005 follow-up treatment record indicated that the Veteran continued to take pain medication and experienced stiffness, but was performing range of motion exercises.  There was no notation of a need for supportive devices.  Upon review of the Veteran's history and the May 2005 x-ray reports, the clinician diagnosed post-traumatic osteoarthritis and ankle instability.   

In March 2006, the Veteran presented with complaints of foot numbness.  Sensory examination abnormalities were noted to be decreased light touch over the lateral aspect of the foot in the distribution of the sural nerve.  Results of an electromyography (EMG) showed that left peroneal and tibial motor responses were normal, but that findings were suggestive of a mild, incomplete axonal injury to the left sural sensory nerve.  (The Board notes that the Veteran is service connected for numbness of the left lateral 5th metatarsal from removal of a foreign body, which injury is rated by analogy to a disability of the external popliteal nerve.)

It appears from an April 2013 VA examination report that follow-up x-rays were taken of the Veteran's left ankle in August 2006, which x-rays revealed minimal degenerative changes of the tibiotalar joint.  The remainder of the examination was unremarkable and there was no evidence of fracture or effusion.  

VA treatment records dated throughout the claims period noted complaints of left ankle pain.  X-rays taken in June 2012 showed no abnormal findings.  In July 2012, the Veteran presented testimony at a Board hearing.  At that time, he reported difficulty walking on uneven surfaces, but denied the use of a cane or brace.  

The Veteran was afforded a VA examination in April 2013, the report of which reflected a diagnosis of residuals of a fracture of the left distal fibula.  The Veteran stated that he experienced decreased range or motion and pain on use, especially when walking on uneven surfaces or when climbing stairs.  The Veteran reported that his pain level corresponded to his level of activity, but he denied flare-ups.  Range-of-motion testing evidenced left ankle plantar flexion to 45 degrees orgreater and left ankle dorsiflexion to 20 degrees or greater.  There was no objective evidence of painful motion.  Repetitive testing did not result in a decrease in range of motion.  Regarding his functional impairment, the Veteran was noted to have left ankle pain whenever he walked a lot or on uneven surfaces, or when climbing stairs.  The examiner noted pain or tenderness on palpation.  There was no evidence of decreased muscle strength, laxity, ankylosis, shin splints, stress fractures, Achilles tendonitis or rupture, or malunion of the calcaneus or talus, and no indication that the Veteran had undergone a talectomy.  The Veteran was observed to have a normal gait pattern, although a mild antalgic gait was noted to exist after prolonged walking.  He was also able to go on his tiptoes and heels without objective evidence of difficulty or pain, and there was no redness, swelling, heat, inflammation, or deformity of the left ankle or left distal fibula.  The examiner stated that x-rays failed to reveal deformity or radiological residuals of the distant fibular fracture, but indicated evidence of degenerative or traumatic arthritis.  VA treatment records dated in April 2013 also note a diagnosis of traumatic arthritis.

At the outset, the Board notes that although the Veteran's residuals of a fracture of the left distal fibula have been evaluated under DC 5262, pertaining to impairment of the tibia and fibula, a review of the evidence of record fails to demonstrate objective evidence of nonunion or malunion of the tibia or fibula at any point during the relevant time period, as required for a rating under that DC.  See 38 C.F.R. § 4.71a, DC 5262 (2012) (providing for 10, 20, and 30 percent ratings for malunion of tibia or fibula with slight, moderate, or marked knee or ankle disability, respectively, and for a 40 percent rating for nonunion of the tibia or fibula.)

Accordingly, because the evidence fails to contain objective findings of nonunion or malunion of the tibia or fibula at any point since May 2, 2005, the Board finds no basis upon which to assign a disability rating in excess of 10 percent under the rating criteria set forth in DC 5262.  See id.  Further, the lack of evidence showing nonunion or malunion of the tibia or fibula notwithstanding, the Board finds that the evidence fails to demonstrate more than a slight ankle disability.  Indeed, the Veteran's main residual of his fracture of the left distal fibula has been pain and decreased motion; however, at its worst, the Veteran's ankle pain limits his plantar flexion to 30 degrees.  Stated otherwise, the Veteran's pain has resulted in the loss of only one-third of a full range of motion.  See 38 C.F.R. § 4.71a, Plate II (2012) (providing that a full range of ankle motion is dorsiflexion to 20 degrees and plantar flexion to 45 degrees).  Moreover, while the Veteran's ability to walk for prolonged periods of time may be limited, the Veteran has not specified activities that he is unable to engage in on account of his left ankle pain and the Veteran denied flare-ups of pain.  Further, there is no evidence of the use or need for supportive devices.  The Board finds that this evidence fails to demonstrate more than a slight disability, as the evidence suggest that the functional impact of the Veteran's disability is minimal.  Accordingly, even if considered by analogy, the Board finds that a rating in excess of 10 percent is not warranted under DC 5262 as the evidence simply fails to demonstrate more than a slight disability.

As noted in previous decisions, the Board finds that the Veteran's residuals of a fracture of the left distal fibula are more appropriately rated under the diagnostic criteria pertaining to arthritis, as arthritis has been shown on x-ray and the Veteran carries a diagnosis of traumatic arthritis.  Arthritis due to trauma is to be rated as degenerative arthritis under 38 C.F.R. § 4.71a, DC 5003, which provides for a rating based on the limitation of motion under the appropriate DCs for the specific joint or joints involved.  See 38 C.F.R. § 4.71a, DCs 5003, 5010 (2012).  When, however, the limitation of motion of the specific joint involved is not compensably disabling under the appropriate DCs, a rating of 10 percent is assignable for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003.  38 C.F.R. § 4.71a, DC 5003 (2012); see also Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991) (painful motion of a major joint caused by arthritis, established by x-ray, is deemed to be limited motion and entitled to the minimum 10 percent rating even though there is no actual limitation of motion).  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, DC 5003.

Under DC 5271, a 10 percent rating is assigned for moderate limitation of motion of the ankle and a 20 percent rating is assigned for marked limitation of motion of the ankle.  See 38 C.F.R. § 4.71a, DC 5271 (2012).  As noted above, normal ranges of ankle motion are dorsiflexion from 0 degrees to 20 degrees and plantar flexion from 0 degrees to 45 degrees.  38 C.F.R. § 4.71, Plate II.

In the instant case, the evidence most favorable to the Veteran shows plantar flexion limited to no more than 30 degrees, which represents a one-third reduction of full motion.  However, during the most recent VA examination, the Veteran was able to achieve at least a full range of motion, if not more, and there was no objective evidence of painful motion.  The Veteran was also able to stand on his heels and toes without difficulty.  Given this evidence, the Board finds no basis upon which to assign a rating greater than the currently assigned 10 percent, as the evidence fails to demonstrate "marked" limitation of motion at any point during the relevant time period.  Although the rating criteria does not specifically define "moderate" or "marked" limitation of motion, the Board finds that being able to achieve greater than one-half of full motion, even taking into consideration pain, does not represent "marked" limitation of motion.  Accordingly, the Board finds no basis upon which to assign a rating greater than 10 percent under the criteria set forth in DC 5271, especially given that the most current evidence fails to demonstrate any actual limitation of motion.  38 C.F.R. § 4.71a, DC 5271.  

The Board has also considered whether the Veteran may be entitled to a higher rating under the following DCs applicable to disabilities of the ankle:  (1) DC 5270, which pertains to ankylosis; (2) DC 5272, which pertains to ankylosis of the subastragalar or tarsal joint; (3) DC 5273, which pertains to malunion of the os calcis or astragalus; and (4) DC 5274, which provides for a 20 percent rating for having undergone an astragalectomy.  38 C.F.R. § 4.71a, DCs 5270, 5272, 5273, 5274 (2012).  

There is no evidence of ankylosis of the ankle or subastragalar or tarsal joint to allow for application of DC 5270 or 5273.  Further, the evidence of record does not demonstrate malunion of the calcaneus or talus, and there is no indication that the Veteran had undergone a talectomy (an astragalectomy).  Accordingly, the Board finds that the evidence does not support a rating under DCs 5273 or 5274.

The Board notes further that when an evaluation of a disability is based on limitation of motion and/or arthritis, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012).  See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  In that regard, the functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  Further, pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities.  38 C.F.R. § 4.45.  Moreover, painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint.  38 C.F.R. § 4.59.

The Veteran has reported his main symptoms related to the old fracture of the left distal fibula to be pain and unsteadiness, most often experienced after driving, walking, or climbing stairs.  Notably, the objective evidence of record failed to show any evidence of painful motion on examination in April 2013.  However, there was tenderness or pain on palpation.  Further, repetitive motion testing produced no additional loss of motion, incoordination, weakness, pain, or fatigability.  Rather, the only functional loss was noted to be the Veteran's report of left ankle pain whenever he walked a lot, walked on uneven surfaces, or climbed stairs.  

In light of the evidence of record, the Board finds that the evidence does not support a rating greater than the currently assigned 10 percent for the Veteran's residuals of the fracture of the left distal fibula.  In this regard, the Board notes that while pain may cause a functional loss, pain itself does not constitute functional loss.  Indeed, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011); see 38 C.F.R. § 4.40.  Thus, even considering the DeLuca factors, regardless of their presence or of the point at which the Veteran began to experience pain, without some evidence of a resulting functional impairment that more nearly approximates the criteria for the next highest rating, the evidence of record, to include the Veteran's subjective complaints, simply fails to establish entitlement to rating greater than 10 percent.  This is so because an evaluation in excess of the minimum compensable rating must be based on demonstrated functional impairment.

In finding that an evaluation greater than 10 percent is not warranted for the Veteran's residuals of the fracture of the left distal fibula at any point since May 2, 2005, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  The Board is unable to identify a reasonable basis for granting a rating greater than that already assigned at any point during the relevant time period under any applicable DC.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102 (2012).

The above determinations are also based upon consideration of applicable rating provisions and Board finds that the level of severity and symptomatology are adequately compensated by the schedular criteria found in the rating schedule for the considered DCs.  Indeed, the Veteran's main symptom has been pain, which cause a limitation of motion and results in the Veteran feeling unsteady on uneven surfaces and while climbing stairs.  Even in consideration of the Deluca factors, the Board finds no evidence demonstrating an exceptional disability picture such that the available schedular evaluations for the Veteran's service-connected residuals of the fracture of the left distal fibula are inadequate.  Referral for extraschedular consideration is therefore not required.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); 38 C.F.R. § 3.321(b)(1) (2012).

Lastly, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that the issue of entitlement to a total rating based upon individual unemployability due to service connected disability (TDIU) is part of an increased rating claim when that issue is raised by the record.  In this case, the Board finds that the issue of entitlement to TDIU has not been raised by the Veteran or the record, as there is no indication that the Veteran is unemployable on account of his left ankle disability.  Indeed, the April 2013 VA examiner found that the Veteran's left ankle residuals do not impact his ability to work.  


ORDER

Entitlement to a rating in excess of 10 percent for residuals of a fracture of the left distal fibula since May 2, 2005, is denied.


REMAND

In its March 2013 remand, the Board discussed the fact that the evidence of record suggested that the Veteran never had a left brachial plexus injury and that any such previous classification was erroneous.  The Board pointed out that a July 2010 VA examiner determined that the "[V]eteran never had evidence of a left brachial plexopathy but [that] his diagnosis should have been cervical radiculopathy of the left upper extremity."  The examiner stated that what had been termed dystonia was really myofascial pain and spam of the left trapezius muscle, likely a result of the Veteran's cervical spine degenerative disc disease with radiculopathy, and ultimately concluded that the "fact that [the Veteran's] cervical epidural gives significant relief of all his symptoms is evidence that his problems involving the left upper extremity and posterior shoulder (trapezius) is secondary to his neck."

The Board then noted that seemingly based on the July 2010 examination report, the Veteran was service-connected for radiculopathy of the left upper extremity by way of a February 2012 rating action.  Review of the February 2012 rating decision suggested to the Board that the Veteran was now service-connected for radiculopathy of the left upper extremity, a left brachial plexus injury, degenerative joint and disc disease of the cervical segment of the spine, and cervicogenic headaches.  The Board noted that although the RO granted service connection for radiculopathy of the left upper extremity, it did not address the underlying assertions contained in the July 2010 medical report - that is, it failed to address the VA examiner's conclusion that the Veteran never had a left brachial plexus injury and that any such previous classification was erroneous.  

Pointing out that VA regulations prohibit a veteran from being compensated twice or more for symptomatology resulting from the same disability, the Board determined that on remand, the AOJ was to undertake a thorough discussion of the Veteran's left brachial plexus injury, degenerative joint and disc disease of the cervical segment of the spine, cervicogenic headaches, and radiculopathy of the left upper extremity and decide whether the Veteran was separately entitled to service connection for all four disabilities separately. 

On remand, the Veteran was afforded a VA examination, the report of which noted no objective evidence of radiculopathy, a muscle injury, or a shoulder disability.  Indeed, the VA examiner indicated no objective evidence of bilateral upper extremity peripheral neuropathy or brachial plexopathy by way of record review, history, or examination.  In readjudicating the Veteran's claim via the May 2013 SSOC, the Appeals Management Center (AMC) stated that based on the evidence currently of record, the Veteran would warrant a noncompensable evaluation based on noncompensable symptoms.  The AMC went on to state, however, that it would not reduce the Veteran's benefits based on a single examination and determined that that a review of the entire claims folder evidenced that the Veteran's overall disability picture showed that he continued to warrant a 20 percent disability rating.  Notably, however, the AOJ did not explicitly discuss and decide whether the Veteran is separately entitled to service connection for all four disabilities separately in accordance with the principles set forth in Esteban v. Brown, 6 Vet. App. 259 (1994).  The Board acknowledges that the action paragraphs of its March 2013 remand did not specifically direct the AOJ to undertake this type of review as part of its readjudication of the Veteran's claim.  However, as the body of Board's remand was clear that readjudication of the remanded issue was to include such discussion and decision, the AOJ is not relieved of its duty to comply with the terms of the Board's remand simply because the action paragraphs did not explicitly state that the AOJ was to undertake such a review.  Accordingly, the matter must again be remanded for the AOJ to comply with the terms of the Board's prior remand.  Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting Board's duty to "insure [the RO's] compliance" with the terms of its remand orders).


Accordingly, the case is REMANDED to the AOJ for the following action:

1.  The AOJ should review the record, to specifically include the July 2010 VA examiner's conclusion that the Veteran never had a left brachial plexus injury and that any such previous classification was erroneous and the April 2013 VA examiner indicated no objective evidence of bilateral upper extremity peripheral neuropathy or brachial plexopathy by way of record review, history, or examination and, in accordance with 38 C.F.R. § 4.14 and the principles set forth in Esteban v. Brown, 6 Vet. App. 259 (1994), readjudicate the issue of entitlement to a disability evaluation in excess of 20 percent for the residuals of a left brachial plexus injury.  

The AOJ's readjudication must include a thorough discussion of the Veteran's left brachial plexus injury, degenerative joint and disc disease of the cervical segment of the spine, cervicogenic headaches, and radiculopathy of the left upper extremity, to include delineating what symptoms are attributable to each service-connected disability, and a determination of whether the Veteran is separately entitled to service connection for all four disabilities separately.  

(If the AOJ determines that additional development, such as obtaining a, additional medical opinion, is necessary to adjudicate the issue, that development should be accomplished.)

2.  If any benefit sought is not granted, the Veteran should be furnished with a SSOC and afforded an opportunity to respond before the record is returned to the Board for further review.  

Thereafter, the case should be returned to the Board for further appellate review.  By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified.  The Veteran 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 case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court 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).



______________________________________________
THOMAS H. O'SHAY
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs