Citation Nr: 1332981 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 11-10 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to Dependents' Educational Assistance under the provisions of 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from May 1978 to August 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. In that decision, the RO, among other things, granted entitlement to a total disability rating based upon individual unemployability, but denied entitlement to Dependents' Educational Assistance under the provisions of 38 U.S.C. Chapter 35 on the basis that the evidence failed to demonstrate that the Veteran's service-connected disabilities were in fact, "permanently and totally disabling." The case was certified to the Board by the White River Junction, Vermont RO. Upon review of this case, and, in particular, the Veteran's testimony at the time of a hearing before the undersigned in September 2011, it would appear that, in addition to the issue currently on appeal, the appellant seeks entitlement to service connection for the residuals of a right wrist fracture and right lower extremity neuropathy, with right foot involvement. Inasmuch as those issues have not been developed or certified for appellate review, they are not for consideration at this time. They are, however, being referred to the RO for appropriate action. Finally, for reasons which will become apparent, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND A review of the record in this case raises questions as to the "permanence" of the Veteran's service-connected disabilities which in combination are currently evaluated as totally disabling. As noted above, in a September 2010 rating decision, VA granted entitlement to a total disability rating based upon individual unemployability, but denied entitlement to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 based on a finding that the Veteran's service-connected disabilities were not, singularly or in combination, found to be "permanently and totally disabling." Service connection is currently in effect for limited and painful motion of the right knee, evaluated as 50 percent disabling; postoperative residuals of an arthrotomy and extensive surgical repair of right knee tendons, evaluated as 20 percent disabling; postoperative residuals of a right ankle fracture with talus displacement associated with postoperative residuals of arthrotomy and extensive surgical repair of right knee tendons, evaluated as 20 percent disabling; and a right ankle surgical scar associated with postoperative residuals of arthrotomy and extensive surgical repair of right knee tendons, evaluated as 10 percent disabling. In addition, in a September 2011 rating decision VA granted entitlement to service connection for an adjustment disorder with anxiety secondary to the Veteran's right knee disabilities, evaluated as 30 percent disabling. The appellant's combined service-connected disability rating is 80 percent. The Veteran argues, contrary to the RO's conclusion, that his disabilities are, in fact, "permanently and totally disabling," and that he is, therefore, entitled to Dependents' Educational Assistance under the provisions of 38 U.S.C. Chapter 35. In that regard, pertinent evidence of record is to the effect that the Veteran is a registered nurse, and prior to a fall in January 2009, he worked not only as a clinical supervisor in a hospital emergency room, but also part time as a staff nurse in another hospital emergency room, and as a local medical examiner with the Vermont Department of Health. Since the January 2009 fall, however, which was apparently precipitated by the Veteran's right knee giving way, he has allegedly been precluded from all of his former employment activities. Moreover, as a result of medication, including narcotic medication, prescribed for his various service-connected disabilities, he has reports finding it impossible to engage in other, more "sedentary" activities. Further, pertinent evidence of record is to the effect that the Veteran has recently taken a leave of absence from a baccalaureate nursing program, and he has withdrawn from a program of Vocational Rehabilitation. During the course of the videoconference hearing in September 2011, the Veteran, for the first time, indicated that he was currently in receipt of Social Security disability benefits, apparently, due in large part to his various service-connected disabilities. Where, as in this case, VA has actual notice that the Veteran is receiving disability benefits from the Social Security Administration, and such information is arguably relevant, VA's duty to assist requires that efforts be taken to obtain a copy of the decision and any supporting medical records upon which the award was based. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). During the course of the September 2011 hearing, testimony was offered to the effect that there was currently in existence a "temporary file" which had not yet been associated with the Veteran's claims folder. Moreover, a review of the Veteran's claims file would appear to indicate that he last underwent a VA psychiatric examination for the purpose of determining the current severity of his service-connected psychiatric disorder in July 2011, while the most recent VA orthopedic examination was conducted in February 2010, at this point, more than three years ago. Under the circumstances, contemporaneous VA examinations would be appropriate prior to a final adjudication of the Veteran's current claim. See Snuffer v. Gober, 10 Vet. App. 400 (1997); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Accordingly, in light of the aforementioned, the case is REMANDED to the AMC/RO for the following actions: 1. The AMC/RO should contact the Social Security Administration, and request that they provide a copy of the decision concerning the Veteran's claim for Social Security disability benefits. Any medical records utilized in the award of Social Security disability benefits should be requested. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. Once obtained, all such information and records should be made a part of the Veteran's claims folder. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. The AMC/RO should then take all necessary action to procure any "temporary file" currently in existence. Once obtained, any such "temporary file" should be associated with the Veteran's claims folder. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to May 2013, the date of the most recent evidence of record, should then be obtained and incorporated in the claims folder. Once again, the Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to secure such records must be documented in the claims file. If the AMC/RO cannot obtain such records, the AMC/RO must specifically document the attempts that were made to locate them, and explain why further attempts to locate or obtain any government records would be futile. In addition, the Veteran and his representative should be informed of any such problem. 4. The Veteran should then be afforded additional VA psychiatric and orthopedic examinations in order to more accurately determine the current severity of his service-connected psychiatric disability and right lower extremity disorders. The Veteran is hereby notified that it is his responsibility to report for the examinations, and to cooperate in the development of his claims. The Veteran is further to be advised that the consequences for failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the examinations, and in accordance with the latest worksheets for rating psychiatric and musculoskeletal disabilities, the examiners are to provide a detailed review of the Veteran's pertinent medical history and current complaints, as well as the current severity of his service-connected psychiatric disorder and right lower extremity disabilities. In particular, as regards the Veteran's right lower extremity disabilities, the examiner must specifically address any and all limitation of motion (including additional limitation of motion following repetitive use resulting from pain, weakness, fatigue, a lack of endurance, and/or incoordination). The examiner should also discuss factors associated with disability, such as objective indications of pain on pressure or manipulation. Finally, the examiner should inquire as to whether the Veteran experiences flare-ups associated with his service-connected right lower extremity disabilities. To the extent possible, any additional functional loss or limitation of motion attributable to such flare-ups should be described. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder, to include access to the appellant's Virtual VA file, must be made available to and reviewed by the examiners prior to completion of the examinations. The examiners must specify in their reports that the claims file and Virtual VA records have been reviewed. 5. The RO/AMC should then review all examination reports to ensure that they are in complete compliance with the directives of this REMAND, and that the examiners have documented their consideration of all records contained in Virtual VA. If the reports are deficient in any manner, the RO/AMC must implement corrective procedures. 6. The RO/AMC must adjudicate the issues of entitlement to service connection for the residuals of a right wrist fracture and right lower extremity neuropathy, to include right foot involvement. The Veteran is hereby advised that the Board may exercise appellate jurisdiction of a denial of either of these claims if, and only if, he submits a timely perfected appeal. 7. The RO/AMC should then readjudicate the Veteran's claim for Dependents' Educational Assistance under the provisions of 38 U.S.C. Chapter 35. Should the benefit sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case which must contain notice of all relevant action taken on the claim for benefits since March 2011. An appropriate period of time should be allowed for response. 8. Thereafter, the case should be returned to the Board, if in order. However, in no case should the Veteran's file be returned to the Board prior to a full adjudication of the issues of entitlement to service connection for the residuals of a fracture of the right wrist, and neuropathy of the right lower extremity, to include the right foot. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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). _________________________________________________ DEREK R. BROWN 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).