Citation Nr: 1331967 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 09-29 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial rating in excess of 20 percent for service-connected residuals of injury, right pectoral region, resulting in scar and painful limitation of shoulder motion, claimed as right brachial plexus injury, right shoulder, with residual radial nerve damage, muscle damage, and rotation of the shoulder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from May 1996 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2005 and May 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In the May 2005 rating decision, the RO, in pertinent part, granted service connection for residuals of injury, right pectoral region, resulting in scar and painful limitation of shoulder motion, claimed as right brachial plexus injury, right shoulder, with residual radial nerve damage, muscle damage, and rotation of the shoulder. The RO assigned a 20 percent rating, effective March 30, 2004. The RO also granted service connection and assigned an initial noncompensable (0 percent) rating for residual weakness of the right thumb, as secondary to the service-connected disability of residuals of injury to the right pectoral region. In July 2005, the Veteran's representative asserted that the RO had not properly addressed the Veteran's radial nerve condition, as the radial nerve damage had been combined into the rating criteria for the 20 percent rating for the right pectoral muscle injury. He argued that the radial nerve damage warranted a separate compensable rating. In a November 2005 rating decision, the RO continued the 20 percent rating for residuals of an injury to the right pectoral region, finding that a separate rating for radial nerve damage was not warranted as this was part of the residuals to injury to the right brachial plexus. In January 2006, the Veteran filed a notice of disagreement (NOD), asserting that he continued to disagree with the May 2005 and November 2005 rating decisions. He asserted that he was entitled to separate ratings for muscle injury, limitation of motion of the shoulder, nerve damage, and scarring. In a February 2006 rating decision, the RO granted an increased, 20 percent initial rating for neuropathic radial nerve changes with residual weakness of the right thumb. This 20 percent rating was granted based on neurological damage in the hand. In February 2007, the Veteran filed a claim for an increased rating for his service-connected right shoulder condition. In a May 2007 rating decision, the RO continued the 20 percent rating for the service-connected right shoulder disability. In March 2008, the Veteran again filed a claim for an increased rating of for his service-connected right shoulder disability. In the May 2008 rating decision, the RO again continued the 20 percent rating. The Veteran filed an NOD with the May 2008 rating decision in September 2008. The RO has characterized the claim presently on appeal as arising from the May 2008 rating decision. The RO indicated in the February 2006 rating decision, that the grant of a higher initial rating for radial nerve changes satisfied the Veteran's appeal; however, the Veteran had asserted in his prior NOD that he disagreed with the RO's failure to assign separate ratings based on not only nerve damage, but also muscle injury, limitation of motion of the shoulder, and scarring. If, after a valid NOD is filed, VA fails to issue a statement of the case (SOC), then the claim remains pending. See Myers v. Principi, 16 Vet. App. 228, 235-236 (2002); Tablazon v. Brown, 8 Vet. App. 359, 361 (1995). The United States Court of Appeals for Veterans Claims (Court) has held that "[w]here an appellant places a claim for one disability into appellate status by virtue of an NOD, that claim is resolved by a later appellate adjudication of a subsequent claim where both claims stem from the same underlying disorder and the claimed disabilities are identical or substantially similar." Jones v. Shinseki, 23 Vet. App. 122, 126 (2009). The Court quoted from its decision in Juarez v. Peake indicating that "[o]nce an NOD has been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal that remains pending before the Board. Only a subsequent Board decision can resolve an appeal that was initiated but not completed." Jones, 23 Vet. App. at 125 (quoting Juarez, 21 Vet. App. 537, 543); see 38 U.S.C.A. § 7105(a), (d)(1). Accordingly, the Veteran's disagreement with the initial rating assigned for his service-connected residuals of injury to the right pectoral region remains pending, and the Board has characterized the issue on appeal as reflected on the title page. In July 2012, the Board remanded the case to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. After completing additional development, the AMC continued to deny the claim (as reflected in a January 2013 supplemental statement of the case (SSOC)), and returned this matter to the Board. The Board has reviewed the contents of the Veteran's Virtual VA file and found that it contains additional medical evidence that has been considered by the AMC in the most recent supplemental statement of the case (SSOC). Therefore, the Board's consideration of this evidence will not result in prejudice to the Veteran. 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 In his August 2009 VA Form 9 (substantive appeal), the Veteran commented that, although the SOC indicated that the RO had considered treatment records from the Phoenix VA Medical Center (VAMC) dated in November 2008, he had gone to the Sun City Community Based Outpatient Clinic (CBOC) for dizziness/nausea, and not his shoulder. However, the Veteran added that he had begun treatment at the Phoenix VAMC for his shoulder, and asked the RO to obtain these records to support his claim. The claims file includes treatment records from the Sun City CBOC dated in November 2008 (printed in December 2008 and March 2009); however, there is no indication that the RO subsequently requested VA treatment records from this facility, despite the Veteran's August 2009 request. The record reflects that the Veteran moved from Arizona to Michigan, as indicated in an August 2011 statement. He then moved to Florida, as reflected in an April 2012 change of address form. A July 2012 consultation request from the West Palm Beach VAMC reflects that a July 2011 right shoulder MRI from the Phoenix VAMC revealed a non-displaced labral tear, paralabral cyst, and mild (AC) joint degenerative joint disease (DJD). A November 2012 VA treatment record from the West Palm Beach VAMC indicates that a November 2011 X-ray of the right shoulder was normal and again referenced the July 2011 shoulder MRI. Pursuant to the Board's July 2012 remand directives, the Veteran underwent VA examination in August 2012. The VA examiner included in his examination report the results of a December 2011 right shoulder X-ray. This X-ray indicates that the patient location was "DET", presumably, Detroit. The August 2012 VA examiner also commented that November 2011 orthopedic notes indicated that right shoulder MRI showed tendinosis, a non-displaced labral tear, and AC joint DJD. The claims file includes treatment records from the Sun City CBOC dated in November 2008 and the Virtual VA e-folder includes treatment records from the West Palm Beach VAMC, dated from January to December 2012; however, the actual treatment records from July and November 2011, from the Phoenix and Detroit VAMCs, respectively, are not currently available for the Board's review. Accordingly, the claim must be remanded to obtain the outstanding pertinent VA treatment records. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The record also suggests that the Veteran may have received VA vocational rehabilitation. In this regard, the claims file includes a November 2011 VA Form 28-0846, Employment Adjustment Allowance Authorization. However, no VA vocational rehabilitation folder has been forwarded to the Board. On remand, the AMC/RO should associate with the claims file the Veteran's vocational rehabilitation records or folder. See Dunn, 11 Vet. App. at 466-67; Bell, 2 Vet. App. at 613. The claim was remanded in July 2012 to afford the Veteran a VA examination. The Board instructed that the examiner should discuss all symptomatology associated with the Veteran's residuals of injury to the right pectoral region, to specifically include his scar, any residual radial nerve damage, any muscle damage, and range of motion, including any functional loss due to pain, weakness, excess fatigability, or incoordination. The Veteran underwent VA examination in August 2012. The examiner completed a shoulder and arm conditions Disability Benefits Questionnaire (DBQ), noting that the Veteran had residuals of a right pectoral injury with limited range of motion, and also had a labral tear and AC joint DJD. The examiner performed range of motion testing, noting where pain began, and also reported range of motion measurements after repetitive use. The examiner described the additional functional loss and/or functional impairment of the shoulder and arm after repetitive use. He performed muscle strength and other testing. He noted that there was a palpable defect in the fascia of the right upper pectoral region, with mild tenderness to the area with deep palpation, but commented that motor strength with right shoulder adduction was 5/5 and there was no functional loss of the pectoralis muscles. The VA examiner also completed VA scars and peripheral nerves DBQs. In the peripheral nerves DBQ, the examiner reported that the Veteran had ulnar neuropathy, but there were no objective findings of posterior plexus injury or radial nerve injury. The examiner commented that the Veteran was noted to have a radial nerve injury, but there were no radial nerve distribution symptoms. Rather, he complained of sensory loss in the ulnar nerve distribution, which also corresponded with the lower brachial plexus trunk; however, the symptoms were mostly sensory. The examiner noted that there was subjective grip strength weakness. The examiner indicated that the right radial, median, musculocutaneous, circumflex, and long thoracic nerves and upper, and middle radicular groups were normal, but there was mild incomplete paralysis of the right ulnar nerve and mild incomplete paralysis of the lower radicular group. The examiner commented that an EMG had been ordered to evaluate the etiology of the sensory findings to the ulnar aspect of the hand and added that there were no objective findings of radial nerve or posterior cord of brachial plexus (including radial nerve) injury. The examiner reported that the Veteran had been called to schedule an appointment for the EMG, but did not respond. An August 2012 EMG consultation request reflects that the VA examiner ordered an EMG with a provisional diagnosis of ulnar neuropathy versus lower trunk plexopathy. In providing a reason for his request, he noted that the Veteran was service-connected for a penetrating injury to the right pectoral region with resultant brachial plexopathy noted as radial nerve injury; however, he had no radial nerve distribution symptoms at the time of examination. Rather, his symptoms were essentially sensory in the distribution of the ulnar nerve. The Veteran was to be evaluated for an ulnar nerve entrapment versus a lower trunk plexopathy. This consultation request indicates that a message was left with the Veteran to call back. The VAMC made two follow-up calls in August 2009 and left the Veteran messages to call back to make an appointment. The Miami VAMC also sent the Veteran a letter advising him that they had been unsuccessful in contacting him by telephone to schedule an appointment. The Veteran was asked to contact the VAMC within 15 days or a new referral would be needed. In September 2012, the consultation request was cancelled per protocol, as the MAS had made several attempts to contact the Veteran to schedule an appointment. There is no indication that the Veteran contacted the VAMC to schedule the requested EMG. In his August 2013 Informal Hearing Presentation (IHP), the Veteran's representative acknowledged that the Veteran had failed to report for a scheduled EMG to evaluate the etiology of sensory findings to the ulnar aspect of the hand. The representative argued that this EMG would be a key factor in determining the nature of the Veteran's condition. VA's duty to assist in developing the pertinent facts and evidence in connection with a claim is not a one-way street, and the Veteran has a responsibility to cooperate in such development. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Normally, if a Veteran fails to report for an examination in connection with an original claim, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655(b) (2013). However, as the claim must be remanded in order to obtain outstanding records, as discussed above, the Veteran should be afforded an additional opportunity to complete the requested EMG testing. If the Veteran completes this additional testing, the claims file should be returned to the VA examiner for a supplemental opinion addressing the etiology of the neurological findings. Finally, during an April 2008 VA examination to evaluate his right shoulder disability, the Veteran reported that he was under the care of a private physician, although he had previously reported in March 2008 that he was "not doctoring for this [his right shoulder condition]." The only private treatment record currently associated with the claims file is an October 2006 letter from Dr. R.L.L. regarding the Veteran's left elbow disability. The Veteran reported in May 2008 that he had no additional information to submit regarding his claim, and he did not submit any release in response to a July 2012 letter from the AMC asking that he complete an return an enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), for all private treatment providers who had treated him for his claimed condition. Nevertheless, since the claim is being remanded, he should be afforded the opportunity to submit a release to allow VA to obtain any pertinent private treatment records. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his residuals of injury to the right pectoral region. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for: (1) treatment records from the Phoenix VAMC, dated since November 2008, to include the report of a July 2011 MRI,; (2) treatment records from the Detroit VAMC, to include records dated in November and December 2011; (3) treatment records from the West Palm Beach VAMC, dated since December 2012; and (4) treatment records from the Veteran's private physician, as referenced during VA examination in April 2008. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Associate with the claims file the Veteran's VA vocational rehabilitation folder. 3. Attempt to schedule the Veteran for an EMG, as requested by the August 2012 VA examiner. 4. If the Veteran completes the requested EMG testing, return the claims file to the August 2012 VA examiner for a supplemental medical opinion. The claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner should identify all neurological impairment related to the Veteran's service-connected residuals of injury to the right pectoral region, including damage to the radial nerve, ulnar nerve, and/or lower radicular group. If the examiner determines that the Veteran has any neurological impairment related to the service-connected residuals of injury to the right pectoral region, other than radial nerve damage, he should clearly address whether the neurological impairment is separate and distinct from the radial nerve damage for which he is receiving service-connected compensation. The examiner must include a complete rationale for all opinions expressed. As indicated above, the examiner should review the record in conjunction with rendering his requested opinion; however, his attention is drawn to the following: * In January 1988, the Veteran underwent right elbow arthrotomy for a radial head fracture. On enlistment examination in July 1994, examination of the right elbow revealed good range of motion. X-ray of the right elbow was normal in July 1994. * In September 2001, the Veteran presented to the emergency room with an open wound to the right chest side, anterior to the midaxillary line, after a high pressure nozzle flew off a compressor and hit him in the chest. The wound was debrided and closed. A Penrose drain was placed which was removed three days later. When the Veteran returned for follow-up the following week, he reported no problems and the assessment was that the wound was healing well. * A November 2003 Medical Evaluation Board (MEB) narrative summary indicates that the Veteran had presented to the General Surgery Clinic in September 2003 with complaints of right lateral arm and 3rd, 4th, and 5th digit coldness, numbness, and tingling. He described these symptoms as persistent but stable since the right axillary injury in September 2001. In October 2003, the Veteran had been diagnosed with a right brachial plexus injury. The MEB examiner noted that the Veteran had an abnormal electrodiagnostic study, with mild neuropathic changes in the radial nerve on the right. Based on the clinical history and examination findings, it was opined that this was most likely a result of a remote lower trunk (+/- middle trunk) brachial plexus injury. The consulting neurologist commented that, at two years after injury, she would not expect any significant improvement or decrement in the Veteran's clinical status. The final diagnosis of the MEB physician was that the Veteran had a two year history of right upper extremity neurologic symptoms consistent with right brachial plexus injury sustained while on active duty. * On VA peripheral nerves examination in January 2005, the Veteran described paresthesias, dysesthesias, and tingling in the right arm, with pain in the right arm and shoulder. He stated that he had almost constant paresthesias and dysesthesias in the 3rd, 4th, and 5th digits of the right arm. He added that abducting the arm at the shoulder caused increased dysesthesias. The pertinent diagnosis was brachial plexus injury with injury to the lateral trunk and residual weakness, right thumb. * On VA examination in March 2005, neurologic examination revealed no motor or sensory loss on the right, and deep tendon reflexes were 2+. The pertinent diagnoses were residuals of right brachial plexus nerve injury and superficial scar to the right pectoral area. * On VA examination in March 2007, the right upper extremity was negative for any neurologic deficit with regard to the radial, ulnar, or median nerve. The Veteran did complain of some sensory dullness along the ulnar border of the arm and over the small index and middle finger on the dorsum. Grip was strong and radial pulse was palpable. The pertinent diagnosis was residual of injury, right pectoral region, resulting in scar and mild limitation of shoulder motion. * During treatment in October 2012, the Veteran complained of paresthesias and numbness in the right hand and ulnar three digits since his in-service brachial plexus injury. If further examination of the Veteran is deemed necessary to obtain the requested opinion, arrange for the appellant to undergo VA examination. In conjunction with the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies should be accomplished. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 5. Conduct any other appropriate examination and development deemed necessary. Then readjudicate this claim in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative another a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The appellant has the right to submit additional evidence and argument on the matter that 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. 2013). _________________________________________________ KELLI A. KORDICH Acting 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) (2013).