Citation Nr: 1324281 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 10-08 032 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for status post left distal radius fracture with open reduction and internal fixation (ORIF) and scars. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from January 1999 until November 2007. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2008 rating decision in which the RO, inter alia, granted service connection and assigned an initial, 10 percent rating for status post left distal radius fracture with ORIF and scars, effective November 13, 2007. In October 2008, the Veteran filed a notice of disagreement (NOD) with the 10 percent rating. 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 December 2009. The RO continued the denial of the claim (as reflected in a March 2011 supplemental SOC (SSOC)). 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 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 issue on appeal. For the reasons expressed below, the matter on appeal is 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. . During a February 2011 VA examination of his wrist, the Veteran reported that he had tingling in the tips of his index and long fingers and had wrist weakness. However, the February 2011 VA examiner did not address whether the Veteran has any neurological impairment associated with the service-connected left wrist disability (to include whether any such impairment warrants a separate rating). The Board also notes that the service-connected disability includes scars; however, the medical evidence currently of record does not include sufficient information to evaluate the scarring (again, to include to determine whether any such impairment warrants a separate rating. Additionally, in the July 2013 Appellant's Brief, the Veteran's representative appears to contend that a VA examiner has not fully considered the Veteran's impairment of the radius. To ensure that the record includes sufficient medical findings needed to properly evaluate the disability under consideration, the Board finds that further medical examination with appropriate clinical findings, is warranted. 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). Accordingly, the RO should arrange for the Veteran to undergo VA examination of his left wrist, by , 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 result in denial of the claim (as this claim, emanating from a claim for, and award of, service connection (an original claim) will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (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 further examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should give the Veteran another opportunity to provide information and/or evidence pertinent to the claim 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 , 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 prior to adjudicating the claim on appeal. The ROs adjudication of the claim should include consideration of all applicable rating criteria, to include that considered alternatively, or in addition to, any diagnostic criteria previously considered. The RO should specifically consider and address whether any separate rating(s) for neurogical impairment and/or scars is/are warranted, as well as whether any staged rating (assignment of different ratings for distinct period(s) of time is/are appropriate. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following actions: 1. Send 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 claim for an increased rating for the service-connected status post left distal radius fracture with ORIF (left wrist disability) that is not currently of record. Specifically request that the Veteran provide, or provide 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). 2. 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. 3. 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 VA examination of his left wrist, 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 should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies 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 clearly identify all current residuals of the Veteran's ORIF of the left wrist, to include limited motion or ankylosis, neurological impairment, and/or scarring. The examiner should conduct range of motion testing of the left wrist, expressed in degrees. The examiner should indicate whether, on examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner physician should indicate the point at which pain begins. The physician should indicate whether, and to what extent, the Veteran experiences likely functional loss 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 physician should express any such additional functional loss in terms of additional degrees of limited motion. The physician should indicate whether there is an actual or effective ankylosis of the wrist, and, if so, whether such ankylosis is favorable or unfavorable. The physician should also identify all neurological impairment associated with the left wrist disability, and for each identified impairment, indicate whether such constitutes a separately-ratable residual of the ORIF, and assess the severity of the impairment. Further, the physician should provide a description of any post-surgical scarring, to include, but not limited to the following: the measurements of the length and width of the scarring, as well as the areas of the scars in terms of square inches or square centimeters; whether the scarring is superficial (not associated with underlying soft tissue damage); whether the scarring is unstable (frequent loss of covering of skin over scar); whether the scarring is painful on examination; and whether any such scar results in limited motion or other limitation of function of the wrist.. The physician should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten report). 4. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 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 action, and any additional notification and/or development deemed warranted, adjudicate the claim in light of all pertinent evidence (to include all that associated with the claims file after the RO's last adjudication of the claim) and legal authority. Adjudication of the claim should include consideration of all applicable rating criteria, to include that considered alternatively, or in addition to, any diagnostic criteria previously considered. Specifically consider and address whether any separate rating(s) for neurogical impairment and/or scars is/are warranted, as well as whether any staged rating (assignment of different ratings for distinct period(s) of time, based on the facts found) is/are appropriate. 7. If the benefit sought on appeal is denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes citation to and discussion of any additional legal authority considered, along with 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).