Citation Nr: 1329946 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 10-07 695 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUE Entitlement to a rating in excess of 10 percent for bursitis of the right elbow, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from March 1996 to March 2001. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2008 rating decision in which the RO denied the Veteran's claim for a rating in excess of 10 percent for bursitis of the right elbow. In April 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in October 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals ) in February 2010. In April 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge in Washington, DC; a transcript of that hearing is of record. In June 2011, the Board expanded the claim for higher rating to include extra-schedular consideration, pursuant to 38 C.F.R. § 3.321(b), and remanded the expanded claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further action. A supplemental SOC (SSOC), reflecting the continued denial of the claim, was issued in April 2012. In February 2013, the claim was again remanded to the RO, via the AMC, for further action. A June 2013 SSOC reflects the continued denial of the claim. For the reason expressed below, the claim is again remanded to the RO, via the AMC. VA will notify the Veteran when further action, on her part is required. REMAND The Board's review of the claims file reveals that further RO/AMC action on the claim on appeal is still warranted. In the most recent February 2013 remand, the Board again directed that the RO/AMC arrange for the Veteran to undergo a VA examination for evaluation of her service-connected bursitis. The Board noted that there appeared to be continuing confusion regarding the Veteran's current address. The RO/AMC was instructed to furnish to the appropriate VA medical facility the Veteran's most recent address for examination notification purposes. See action paragraph number 3 of the February 2013 remand. In March 2013 the RO/AMC provided the relevant VA Medical Center with the Veteran's address listed as "6859 R. M. Court." The RO/AMC also sent a duty-to-assist letter to the same address. The Board notes, however, in April 2013 the AMC verified the Veteran's address, and the Veteran's most recent address was listed as "5603 S. lane". The AMC then sent a duty-to-assist letter to that address in April 2013. Subsequent to the April 2013 letter, in May 2013, the Veteran submitted the Veterans Claims Assistance Act of 2000 (VCAA) notice response. It is unclear whether the pertinent VA medical facility actually received the updated address, as it was noted that the Veteran again failed to report to the May 7, 2013 VA examination. In June 2013, the AMC requested that the VA medical center either send or email a copy of the notification letter that was sent to the Veteran. Although no such letter has been associated with either the paper claims or electronic (Virtual VA) claims file, the AMC denied the claim as a matter. Under the circumstances of this case, and in the interests of due process, the Board finds that the Veteran should once again be given another opportunity to report for a VA examination to obtain the clinical findings and other medical information needed to resolve the current claim on appeal. As previously indicated, the examiner should consider the Veteran's February 2010 statement in her substantive appeal that her chronic pain requires her to take multiple doses of pain medication on a daily basis. The examiner should also consider her sworn testimony regarding her symptoms and their affect on her employment. During her Board hearing, she testified that her right elbow disability causes daily pain that radiates from her shoulder to her hand. She also noted that the pain was worse in the winter and with certain weather changes (e.g., rain). She reported taking over the counter pain medications, such as Advil, on a daily basis for her right elbow pain. She also noted that, occasionally, her primary care physician prescribes her pain medication. She testified that her right elbow disability has caused sleeplessness due to the constant pain. She also asserted that the right elbow disability limited her ability to type and impacted her productivity at work. See April 2011 Board Hearing Transcript. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, shall result in denial of the claim for an increased rating for bursitis of the right elbow. See 38 C.F.R. § 3.655(b) (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. The RO/AMC must ensure that the VA medical facility at which the examination is to take place has the Veteran's most recent address. Also, if the Veteran fails to report to the scheduled examination, the RO/AMC must obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to her 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 also give the Veteran another opportunity to 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). Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties to notify and assist imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). 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 prior to adjudicating the claim for a rating in excess of 10 percent for bursitis of the right elbow. The RO's adjudication of the claim should include explicit consideration of whether the procedures for assigning a higher rating on an extra-schedular basis, pursuant to 38 C.F.R. § 3.321(b), are invoked, as well as consideration of whether "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, this matter is hereby REMANDED for the following action: 1. Send to the Veteran a letter requesting that she provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for increased rating for service-connected bursitis of the right elbow, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b). Explain how to establish entitlement to an increased rating on an extra-schedular basis. Also clearly explain to the Veteran that she 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 her in obtaining additional evidence identified by following current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran 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, arrange for the Veteran to undergo VA orthopedic examination, by an appropriate medical professional, at a VA medical facility. In formulating the examination request, furnish to the pertinent VA medical facility the Veteran's most recent address for examination notification purposes. 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 (to include her Board hearing testimony, referenced above). 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 elbow (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 elbow. 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 elbow due to pain and/or any 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 inquire about the Veteran's pain and other symptomatology based on changes in the weather. The physician should fully describe the functional effects of the Veteran's service-connected bursitis of the right elbow, to include the impact of the disability on her occupation. The examiner 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 her 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. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim for a rating in excess of 10 percent for bursitis of the right elbow. If the Veteran fails, without good cause, 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 pertinent evidence and legal authority (to include consideration of 38 C.F.R. § 3.321, as well as whether staged rating of the Veteran's disability, pursuant to Hart (cited above) is appropriate). 7. If the benefit sought on appeal remains denied, furnish to the Veteran an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford her an 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) (2013).