Citation Nr: 1322576 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 10-01 715 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for cervical strain, with residual myalgia and degenerative joint disease. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected cervical strain, with residual myalgia and degenerative joint disease. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to December 1973. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2008 rating decision in which the RO, inter alia, continued a 30 percent disability rating for cervical strain, with residual myalgia and degenerative joint disease. The RO also denied reopening a claim for service connection for PTSD, service connection for hepatitis C, as well as denied a TDIU. In December 2008, the Veteran filed a notice of disagreement (NOD) only with regard to the denial of his claim for an increased rating for the cervical spine,. The RO issued a statement of the case (SOC) in November 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2010. The RO issued a supplemental SOC (SSOC) in December 2011. In January 2010, the Veteran filed a new claim for TDIU. In a May 2010 rating decision, the RO, inter alia, denied that claim. The Veteran did not file a NOD with that decision. However, as explained in more detail below, and as reflected in the characterization of the appeal (on the title page), the Board considers the matter of the Veteran's entitlement to a TDIU due to the cervical spine as a component of the claim for a higher rating for cervical strain, with residual myalgia and degenerative joint disease. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In his January 2010 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. A May 2013 letter informed the Veteran that his hearing was scheduled in June 2013. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, his Board hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant'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 irrelevant to the issues on appeal. For the 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 appellant 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. First addressing the characterization of the appeal, the Board notes that, notwithstanding the fact that the Veteran did not appeal the denial of a TDIU, here, the Veteran has alleged that he is unemployable due to his cervical spine disability, the Board finds that the claim for a TDIU due to that disability is within its jurisdiction as a component of his claim for a higher rating for his cervical spine disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001. In this case, while the RO did initially consider the issue of TDIU, a review of the claims file reveals that the Veteran has not been given an opportunity to file a formal claim for a TDIU due to service-connected cervical strain, with residual myalgia and degenerative joint disease, or notified of the evidence necessary to establish such a TDIU. Thus, on remand, the RO should afford him the opportunity to file a formal claim for a TDIU due to cervical spine disability-which may yield pertinent information and evidence related to his employability-in addition to taking the other actions noted below.. The Veteran currently asserts, including in a May 2010 statement, that his service-connected cervical strain, with residual myalgia and degenerative joint disease, has worsened since his last VA examination in February 2010. To ensure that the record includes sufficient medical evidence to properly evaluate the disability under consideration, the Board finds that a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed. See 38 C.F.R. § 5103A (West 2012); 38 C.F.R. § 3.159 (2012); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination). Also, inasmuch the Board has now recharacterized the appeal to encompass the matter of the Veteran's entitlement to a TDIU due to the cervical spine disability, the examiner's comment as to the impact of that disability on his employability would be helpful in resolving that claim. Accordingly, the RO should arrange for the Veteran to undergo a VA cervical spine examination by an appropriate physician, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of the claims for increase (to include the claim for a TDIU). See 38 C.F.R. § 3.655 (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. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo VA examination, to ensure that all due process requirements are met, and that 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 records, the claims file currently includes outpatient treatment records from the VA Medical Center (VAMC) in West Palm, Florida from September 2003 until January 7, 2013. More recent records from this facility likely 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 West Palm VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated from January 7, 2013, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide 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 also 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 provide, or provide appropriate authorization for it to obtain, any outstanding 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 prior to adjudicating the claims on appeal. The RO's adjudication of the claim for increased rating should include consideration of whether any "staged" rating (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), is appropriate. Accordingly, these matters are hereby REMANDED for the following actions: 1. Furnish to the Veteran a VA Form 21-8940, to enable him to file a formal application for a TDIU due to service connected cervical spine disability. 2. Obtain from the West Palm VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated from January 7, 2013. The RO must 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. 3. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding private medical records. Specifically explain how to establish entitlement to a TDIU due to cervical strain, with residual myalgia and degenerative joint disease. Also, 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). 4. 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. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange for the Veteran to undergo a VA cervical spine examination ,by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests, studies, and consultations should be accomplished (with all results made available to the physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The physician should conduct range of motion testing of the cervical spine (expressed in degrees). The physician should render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the physician should indicate the point at which pain begins. In addition, the physician should indicate whether, and to what extent, the Veteran experiences likely functional loss of the cervical spine due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The physician should also specifically indicate whether the Veteran has any ankylosis of the cervical spine; and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable. The physician should clearly indicate whether the Veteran has neurological manifestations of cervical spine disability, to include radiculopathy. For each neurological impairment identified, the examiner should clearly indicate whether such constitutes a separately ratable disability, and, if so, should assess the severity of such disability as mild, moderate, moderately severe, or severe. The physician should also indicate whether, at any point since February 2008 the Veteran's cervical spine disability has increased in severity, and, if so, the approximate date(s) of any such change(s), and the level of severity of the disability on each date. In addition, the examiner should provide comment as to daily and/or or occupational impairment associated with the Veteran's service-connected cervical spine disability. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 6. If the Veteran fails to report to the scheduled examination obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 7. 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). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims for higher rating for the cervical spine disability, and for a TDIU due to that disability, in light of all pertinent evidence and legal authority (to include consideration of whether staged rating of the disability, pursuant to Hart (cited above), is appropriate). 9. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran an appropriate SSOC that includes citation to and discussion of all additional legal authority considered, along with reasons and bases for all determinations, and afford him 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).