Citation Nr: 1328959 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 08-25 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for ulnar neuropathy, right upper extremity, assigned a 30 percent rating effective June 30, 2006, and a 50 percent rating effective December 2, 2009. 2. Entitlement to an increased rating for osteoarthritis, right elbow, assigned a 10 percent rating prior to December 2, 2009, and a 20 percent rating effective that date. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from October 1984 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of September 2006. In a decision dated in January 2012, the Board granted a 30 percent rating for ulnar neuropathy of the right upper extremity, effective June 30, 2006, and denied the remainder of the appeal, with respect to the two service-connected right upper extremity disabilities. The Veteran then appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a memorandum decision dated in May 2013, the Court vacated the January 2012 Board decision, and remanded the issues for additional development and consideration. However, because the Board granted a staged 30 percent rating for ulnar neuropathy, which was implemented in a January 2012 rating decision, the issue has been revised to reflect the partial grant. In the January 2012 decision, the Board also remanded the issue of entitlement to a compensable rating for recurrent laryngeal papilloma. The development of that issue has not yet been completed by the issuance of a supplemental statement of the case; thus, it is not before the Board at this time. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Court vacated the Board's January 2012 decision, which addressed the ratings assigned for the Veteran's service-connected right upper extremity disabilities, ulnar neuropathy and osteoarthritis of the elbow, citing, first, failure to address whether VA should have sought private treatment records identified by the Veteran, and second, failure to adequately address whether referral for extraschedular consideration should be made, pursuant to 38 C.F.R. § 3.321(b)(1). The Board finds that VA must seek to obtain the identified private records, as well any other recent treatment records, before addressing whether referral for extraschedular consideration is warranted. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify (as necessary) and authorize the release of the following: * All records of his treatment by C. Esquivia-Munoz, M.D., whose address is contained in a statement from the Veteran received in November 2007. * The names, locations, and approximate dates of treatment of all other health care providers who have treated and/or evaluated a right upper extremity condition, to include ulnar neuropathy and osteoarthritis of the elbow, from March 2010 to the present. Provide appropriate authorization forms for the Veteran to complete and return, and give the Veteran a suitable period of time for response. 2. Make reasonable attempts to obtain all records adequately identified. 3. Based on any evidence obtained as outlined above, adjudicate the following issues on a schedular basis: * Entitlement to an increased rating for right (non-dominant) upper extremity ulnar neuropathy, assigned a 30 percent rating effective from June 30, 2006, to December 2, 2009; * Entitlement to an increased rating for osteoarthritis, right elbow, assigned a 10 percent rating prior to December 2, 2009, and a 20 percent rating effective that date. Note: Because the two disabilities in this case both involve the right upper extremity, and raise the potential for overlapping symptomatology, care must be taken to determine the symptomatology associated with each disability, to avoid pyramiding. 38 C.F.R. § 4.14 (2012). 4. Then, determine whether referral for extraschedular consideration is appropriate, as to each of the following: * Entitlement to an increased rating for right (non-dominant) upper extremity ulnar neuropathy, assigned a 30 percent rating effective from June 30, 2006, and a 50 percent rating, effective December 2, 2009; * Entitlement to an increased rating for osteoarthritis, right elbow, assigned a 10 percent rating prior to December 2, 2009, and a 20 percent rating effective that date. 5. If the decision as to either claim is less than a full grant of the benefit sought, the Veteran and his representative should be provided with a supplemental statement of the case, and given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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). _________________________________________________ JONATHAN B. KRAMER 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 your appeal. 38 C.F.R. § 20.1100(b) (2012).