Citation Nr: 1329644 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 10-12 850 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to a rating in excess of 10 percent for an osteoid osteoma of the right tibia. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from March 1993 to December 1994. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2010 rating decision in which the RO granted a higher rating of 10 percent for an osteoid osteoma of the right tibia. In February 2010, the Veteran filed a notice of disagreement (NOD) with the assigned disability rating. A statement of the case (SOC) was issued in August 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2010. In November 2012, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In February 2013, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing some of the requested development, the RO/AMC continued to deny the claim (as reflected in a May 2013 supplemental SOC (SSOC)) and returned the matter on appeal to the Board for further consideration. The Virtual VA paperless claims processing system contains additional VA outpatient treatment records that have been considered by the RO in the most recent May 2013 SSOC. For the reasons expressed below, the matter on appeal is, again, being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on her part, is required. REMAND VA shall make reasonable efforts to assist a claimant in obtaining evidence to substantiate her claim, unless no reasonable possibility exists that further evidence would aid in substantiating it. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). VA must make reasonable efforts to assist a veteran to obtain relevant records not in the custody of a federal department or agency. Reasonable efforts will generally consist of an initial request and at least one follow-up request. 38 C.F.R. § 3.159(c)(1). During a November 2012 Board hearing, the Veteran stated that she was receiving private medical care and that records of this care would show a worsening of the disability. At that time, the Veteran submitted an authorization for VA to obtain records of private medical care of her right tibia disability from Fondren Orthopedic Group, LLP, Kingwood since January 2009. The authorization on a VA Form 21-4142 is associated with the claims file and was acknowledged by the AMC in the May 2013 supplemental statement of the case. However, the file does not contain records of care from this provider, and there is no indication that records were requested or that the Veteran was informed of the effort to obtain the records and why they were not recovered. See 38 C.F.R. §3.159 (e) (2012). Given the length of time since the authorization was completed, updated authorization should be obtained. The Board further notes that, in the February 2013 remand, the Board directed that a VA examination be performed after all records or responses from each source of additional evidence had been received and associated with the claims file and that the entire file be made available to the examiner. In May 2013, a VA examiner noted a review of the claims file that did not include the identified private treatment records. A remand by the Board confers on a veteran or other claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, after undertaking necessary action to request the records of care from Fondren Orthopedic Group, LLP, Kingwood, and if any additional, relevant records are obtained, further medical opinion based upon review of all pertinent records, to include those noted above, is needed to decide the claim. If further examination is deemed warranted, the Veteran is again advised that failure to report to any such examination may well result in denial of the claim for increase. See 38 C.F.R. § 3.655(b) (2012). Accordingly, on remand, the RO/AMC should give the Veteran another opportunity to identify or present information and/or evidence pertinent to the claim on appeal., explaining that she 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). In its letter, the RO should specifically request that the Veteran provide updated authorization to obtain outstanding records from the private medical care provider identified during the Board hearing. The RO should also request that the Veteran provide, or provide appropriate, authorization for the RO to obtain, all outstanding, pertinent, records from any other private provider. 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 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 (to include obtaining further medical opinion, as indicated above) prior to adjudicating the claim on appeal. The RO's adjudication of the claim for higher rating should include consideration of whether "staged rating" of the 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). The RO should consider the claim in light of all pertinent evidence added to the record since the last adjudication of the claim. Accordingly, this matter is hereby REMANDED for the following action: 1. Send to the Veteran and her representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to this appeal. Specifically request that the Veteran provide updated authorization to obtain records from Fondren Orthopedic Group, LLP, Kingwood. Also request that the Veteran provide, or provide appropriate authorization to obtain, all outstanding, pertinent records from any other private provider. 2. If the Veteran responds, assist her in obtaining any additional evidence identified-to particularly include records from Fondren Orthopedic Group, LLP, Kingwood-by following the current procedures set forth in 38 C.F.R. § 3.159. Associate all records/responses received with the claims file. If any records sought are not obtained, notify the Veteran and his attorney of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. If additional, relevant private medical records are obtained, after all records and/or responses have been associated with the claims file, forward the Veteran's entire claims file-to include a complete copy of this REMAND, and a copies of any relevant electronic records to which the individual does not have access-to the VA physician's assistant who performed the May 2013 examination, or if not available, to another qualified VA medical professional. Request that the physician's assistant or other medical professional consider the additional private medical evidence and provide an addendum to the May 2013 examination report including a discussion of any conflicting clinical observations or tests and any revised diagnoses or opinions regarding the severity of the disability and its impairment of occupational and daily activities. The complete rationale for any conclusions reached should be set forth in a printed (typewritten) report. 4. If further examination of the Veteran is deemed warranted, arrange for the Veteran to undergo VA orthopedic examination, by an appropriate medical professional at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should conduct range of motion testing of the right knee and ankle (expressed in degrees). The examiner 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 right tibia, knee, and ankle. 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 of the right lower leg 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. An assessment of functional loss must include the impact, if any, on the Veteran's capacity for gainful employment. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to any 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 her by the pertinent VA medical facility. 6. 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). 7. After accomplishing all requested action, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal. If the Veteran fails to report to the scheduled examination, in adjudicating the claim for increased rating, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate the claim in light of all pertinent evidence (to particularly include all evidence added to the record since the last adjudication of the claim), and legal authority (to include consideration of whether staged rating, pursuant to Hart (cited above) is appropriate. 8. If the benefit sought on appeal remains denied, furnish to the Veteran and her representative an appropriate SSOC 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; 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 she 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 claim 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).