Citation Nr: 1338919	
Decision Date: 11/26/13    Archive Date: 12/06/13

DOCKET NO.  10-49 364	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD).  

2.  Entitlement to a disability rating in excess of 10 percent for a right knee disability.

3.  Entitlement to a disability rating in excess of 10 percent for a left knee disability.

4.  Entitlement to a disability rating in excess of 10 percent for a left shoulder disability.

5.  Entitlement to a disability rating in excess of 10 percent for bilateral carpal tunnel syndrome (CTS).

6.  Entitlement to a disability rating in excess of 10 percent for a cervical spine disability.  

7.  Entitlement to a compensable disability rating for mild traumatic brain injury (TBI) with residual headaches prior to August 11, 2010, and a rating in excess of 10 percent since.

8.  Whether the reduction from 20 percent to 10 percent for a thoracic spine disability effective August 11, 2010, was proper.

9.  Entitlement to a disability rating in excess of 10 percent for a thoracic spine disability since August 11, 2010.  

10.  Entitlement to a total disability rating based on individual unemployability (TDIU).  


REPRESENTATION

Appellant represented by:	Heather Van Hoose, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Tiffany Berry, Counsel 


INTRODUCTION

The Veteran served on active duty from July to November 1974 and from October 2003 to June 2005. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2010, June 2010, September 2010, and November 2010 rating decisions of the Huntington, West Virginia, VA Regional Office (RO). 

The February 2010 rating decision denied increased ratings for the Veteran's disabilities of bilateral CTS, rated at 10 percent; headaches, rated at 0 percent, and cervical spine, rated at 10 percent.  

The June 2010 rating decision granted the Veteran's claim of entitlement to service connection for PTSD and assigned an initial disability rating of 30 percent, effective from February 19, 2010.  

The September 2010 rating decision denied increased ratings for the Veteran's disabilities of the right and left knees, each rated at 10 percent; left shoulder disabilities, rated at 10 percent; reduced the Veteran's thoracic spine disability from 20 percent to 10 percent, effective from August 11, 2010; and, denied entitlement to a TDIU.  

Finally, the November 2010 rating decision increased the Veteran's mild TBI with headaches to 10 percent, effective from August 11, 2010.  

In July 2013, the Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge (AVLJ).  A copy of the transcript has been associated with the claims file.  

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim.  A review of the documents in such file reveals that there are additional VA treatment records related to the Veteran's claims on appeal.  These records have been reviewed and considered by the Board.

In this case, the Board finds the reduction of the Veteran's rating for his thoracic spine disability from 20 to 10 percent is proper.  However, the remaining issues of entitlement to a TDIU, and entitlement to increased ratings for PTSD, bilateral CTS, mild TBI with headaches, right and left knee disabilities, left shoulder disability, a thoracic spine disability and a cervical spine disability, are addressed in the REMAND portion of the decision below and are REMANDED to the RO for additional development.  


FINDINGS OF FACT

1.  The Veteran has had a 70 percent combined disability rating continuously in effect since February 19, 2007.   

2.  In September 2010, the RO reduced the Veteran's disability rating for his thoracic spine disability from 20 percent to 10 percent, effective from August 11, 2010.  

3.  At the time of the reduction, a 20 percent rating for the Veteran's service-connected thoracic spine disability had been in effect less than five years.

4.  The reduction for the Veteran's thoracic spine disability was based on a reexamination as well as treatment records that showed material and sustained improvement regarding the range of motion of the Veteran's thoracic spine disability.  


CONCLUSION OF LAW

The reduction in the rating for a thoracic spine disability from 20 to 10 percent, effective from August 11, 2010, was proper.  38 U.S.C.A. § 5112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105, 3.343, 3.344(c), 4.71a, Diagnostic Code 5237 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom.  Hartman v. Nicholson, 483 F.3d 1311 (2007).  So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486.

Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The notice requirements under 38 U.S.C.A. § 5103 underwent significant changes during the pendency of the Veteran's appeal.  The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that, for increased rating claims, notice provided to the Veteran under 38 U.S.C.A. § 5103 need not be "veteran specific," and that VA is not required to notify the Veteran that he may submit evidence of the effect of his worsening disability on his daily life, nor is VA required to notify the Veteran of diagnostic codes that his disability may be rated under.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 

The Veteran initially filed a claim of entitlement to an increased rating for the thoracic spine disability.  However, the January, March and July 2010 VCAA letters did not specially address the thoracic spine claim.  Nevertheless, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004).  The letters, especially in combination, indicated the type of evidence and information needed to substantiate a claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence.  Moreover, the claim was readjudicated in a March 2013 Statement of the Case.  Accordingly, the Board finds that VA had fulfilled its duty to notify in this case.  

The Veteran has been afforded a hearing before an AVLJ in which he presented oral argument in support of his claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims ("the Court") held that 38 C.F.R. § 3.103(c)(2) requires that the AVLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. 

Here, during the hearing, the AVLJ specifically noted the issue of the proper rating for the Veteran's thoracic spine disability and asked specific questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating and sought to identify any pertinent evidence not currently associated with the claim.  The Veteran also volunteered his treatment history and symptoms.  Accordingly, the Veteran is not shown to be prejudiced on this basis.  Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

Regarding the duty to assist, the Veteran's pertinent medical records have been obtained, to the extent available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the record.  As noted below, the primary focus of a claim for restoration of a rating is whether the evidence at the time of the rating reduction demonstrated an improvement in the condition.  The Veteran was provided an examination which addressed the relevant rating criteria and showed improvement in the Veteran's condition.  This examination is adequate as the claims file was reviewed, the examiner examined the Veteran, and provided findings in sufficient detail to rate the condition.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); 38 C.F.R. § 3.326.  Accordingly, the Board finds VA has fulfilled its duty to assist with respect to providing a medical examination.  

In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim."  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran).

II.  Reduction

The Veteran challenges the propriety of the reduction of the evaluation for his service-connected thoracic spine disability, contending the disability has not improved to warrant a reduction in rating from 20 percent to 10 percent.

In rating reductions, when VA contemplates reducing an evaluation for a Veteran's service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance.  38 C.F.R. § 3.105(e); see O'Connell v. Nicholson, 21 Vet. App. 89, 93 (2007) (noting that "Congress enacted section 5112(b)(6) so that veterans receiving disability compensation would be notified in advance that their benefits would be diminished, thus enabling them to (1) adjust to the diminished expectation and (2) submit evidence to contest the reduction," and that § 3.105(e) "furthers Congress's intent" in this regard).  As enumerated in 38 C.F.R. § 3.105(e), "[w]here the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons."  38 C.F.R. § 3.105(e).  In addition, "[t]he beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level."  38 C.F.R. § 3.105(e).  The beneficiary also will receive notification that "he or she will have an opportunity for a pre-determination hearing,"  38 C.F.R. § 3.105(i), and thereafter, a "final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires."  See 38 C.F.R. §§ 3.105(e); 3.500(r).

In addition to satisfying the procedures outlined above, the RO must gather evidence to establish that a rating reduction is proper.  Pertinent to the instant case, according to 38 C.F.R. § 3.344(c), where a rating or ratings have been in effect for less than five years, as here, "[r]eexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating."  38 C.F.R. § 3.344(c); see also Faust v. West, 13 Vet. App. 343, 351 (2000) (noting that § 3.344(c) sets forth the provisions relating to disabilities which are likely to improve, and states that "[t]he provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more)");  see also Brown v. Brown, 5 Vet. App. 413, 417 (1993) (holding that five-year period in § 3.344(c) is to be measured from effective date of rating not from date of RO decision assigning that rating).  In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time that it effectuated the reduction, although the Board may consider post-reduction medical evidence in the context of evaluating whether the condition had demonstrated actual improvement.  Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992).

In February 2007, the Veteran filed a claim of entitlement to service connection for a back disability.  In August 2007, in connection with this initial claim of entitlement to service connection for this disability, the Veteran was scheduled for a VA compensation examination.  At that time, the Veteran reported pain in his upper back.  Upon physical examination, the examiner noted mild to moderate tenderness without spasm.  Range of motion testing revealed three consecutive flexion readings of 40 degrees, 50 degrees, and 50 degrees, with pain at the end points.  A diagnosis of acute and chronic thoracic spine strain was provided.  

Based on the findings of this examination, the Veteran was granted service connection for a posttraumatic thoracolumbar spine strain in an October 2007 rating decision, and assigned a 20 percent disability rating under Diagnostic Code (DC) 5237, effective February 13, 2007.  

In December 2009, the Veteran filed a claim for an increased rating for his thoracic spine disability.  The Veteran was afforded a VA examination in January 2010.  The Veteran reported frequent pain in his upper back and stated he was taking ibuprofen 800 as needed.  The examiner noted there was no evidence of neurological problems, ankylosis, or incapacitating episodes of spine disease.  There was also no evidence of spasms, guarding, atrophy, tenderness or weakness.  Range of motion testing was not completed on the Veteran's thoracic spine.  X-rays conducted during this examination showed vertebral body heights and disc spaces preserved, no spondylolisthesis, and the SI joints were intact.  

In August 2010, the Veteran was again scheduled for a VA examination.  The Veteran reported increased pain and stiffness in his back.  There was no evidence of neurological problems, ankylosis, or incapacitating episodes of spine disease.  The examiner noted the Veteran used a cane to walk.  There was also no evidence of spasms, guarding, atrophy, tenderness or weakness.  Range of motion testing revealed flexion to 70 degrees; extension to 20 degrees; right and left lateral rotation to 25 degrees; and, right and left lateral flexion to 25 degrees.  The examiner stated that there was no evidence of pain on active motion, and no additional limitations of motion after repetitive testing.  

During the August 2011 VA examination, there was again no evidence of neurological problems, ankylosis, or incapacitating episodes of spine disease.  There was also no evidence of spasms, guarding, atrophy, or weakness.  Tenderness was, however, noted along the left cervical paraspinal muscles down into the upper thoracic muscles.  Range of motion testing revealed flexion to 100 degrees, with pain at 90 degrees; extension to 30 degrees, with pain at 25 degrees; right and left lateral flexion to 25 degrees, with no pain; right lateral rotation to 45 degrees, without pain; and, left lateral rotation to 40 degrees, without pain. 

By a rating action dated in September 2010, the RO implemented the rating reduction of the thoracic spine from 20 percent to 10 percent, effective August 11, 2010.  The RO did not issue a proposed rating decision or provide the Veteran notice of this reduction.  However, the Board notes that the Veteran's overall compensation was not reduced as a result of the rating reduction for the thoracic spine.  Prior to the September 2010 rating decision implementing the reduction from 20 percent to 10 percent for the thoracic spine, the Veteran's combined disability rating was 70 percent, effective from February 19, 2010.  Following the September 2010 rating decision, the Veteran's combined disability rating remained at 70 percent, effective from February 19, 2010.  Because there was no reduction in overall compensation, the provisions of 38 C.F.R. § 3.105 do not apply.  See Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a Veteran with sixty days notice before making a disability ratings decision effective if the decision did not reduce the overall compensation paid to the Veteran); see also VAOPGCPREC 71-91 (Nov. 7, 1991) (where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, section 3.105(e) does not apply).  Accordingly, the Board finds no error in the RO's notification procedures with respect to the reduction.  

The Board must now determine whether the evidence of record supports such a reduction.  For the reasons explained below, the Board concludes that the reduction is proper.  

As contemplated by 38 C.F.R. § 3.344(c), the Veteran underwent a VA examination in August 2010, which disclosed improvement in his thoracic spine disability.  Subsequent VA medical records and the August 2011 VA examination also reflect sustained improvement, consistent with the August 2010 VA examination's findings of improvement.  

It is important to note that the reduction was based upon applying the current medical findings to the applicable rating criteria.  Here, the Veteran's thoracic spine disability is rated pursuant to DC 5237, which directs VA to rate the Veteran under either the General Rating Formula for Diseases and Injuries of the Spine.

Under 38 C.F.R. § 4.71a, DCs 5235 to 5243, spine disorders are to be rated under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion.  Under these diagnostic codes, a 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

The 70 degrees of flexion noted in the August 2010 VA examination more nearly approximates the rating criteria for a 10 percent disability rating.  Moreover, this level of improvement has been sustained, as reflected by the finding in the August 2011 VA examination report of flexion limited to 90 degree by pain.  Once again, this finding more nearly approximates the criteria for a 10 percent disability rating under DC 5237.  In neither case did the Veteran demonstrate limited range of motion more nearly approximating between 30 and 60 degrees warranting a 20 percent disability evaluation. 

The Board thus finds that the reduction was proper.  


ORDER

The reduction of the disability rating for a thoracic spine disability from 20 percent to 10 percent effective August 11, 2010, was proper; the appeal as to this issue is denied.


REMAND

Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims for increased ratings so that he is afforded every possible consideration.  VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c),(d).

As an initial matter, the Board notes the Veteran's last VA compensation examinations concerning his thoracic spine, cervical spine, right and left knee, bilateral CTS, left shoulder, and headaches disabilities were conducted in August 2011.  Since that time, VA treatment records dated through February 2013 reflect continued treatment for at least several of these disabilities at the VA medical center in Huntington, West Virginia.  Additionally, during his July 2013 Travel Board hearing, the Veteran testified that his service-connected disabilities have worsened in severity since the August 2011 VA examinations.  As such, the Board finds that the Veteran should be afforded contemporaneous VA examinations in order to determine the current level of severity of his service-connected disabilities.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). 

As for the Veteran's PTSD, during the July 2013 Travel Board hearing, the Veteran's attorney indicated that a new psychiatric examination was necessary in order to accurately assess the severity of the Veteran's PTSD.  The Veteran and his attorney subsequently submitted a private psychiatric treatment assessment dated in August 2013.  However, although the 2013 private treatment assessment appears to show an increase in psychiatric symptoms since the Veteran's VA examinations in 2011, it does not address the level of occupational impairment resulting from the Veteran's PTSD symptoms, which is a critical component of evaluating a PTSD disability.  Therefore, the Board finds the Veteran should also be afforded a contemporaneous VA psychiatric examination in order to determine the current level of severity of his service-connected PTSD, and it particular, the impact the current symptoms have on his ability to obtain and maintain substantially gainful employment.  Id.  

Further, the Board finds that the Veteran's claim for TDIU is inextricably intertwined with the claims for higher ratings for his thoracic spine, cervical spine, bilateral CTS, left shoulder, right and left knees, mild TBI with headaches, and PTSD because adjudication of these claims may affect the merits and outcome of the claim for TDIU, particularly with respect to any occupational impairment that may result from the PTSD disability.  Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claims.  Harris v. Derwinski, 1 Vet. App. 180 (1991).

Lastly, relevant ongoing medical records form the VA medical center in Huntington, West Virginia dated since February 2013 should also be obtained.  38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). 

Accordingly, the case is REMANDED for the following action:

1.  Obtain relevant VA treatment records from the VA medical center in Huntington, West Virginia, dated from February 2013 to the present. 

2.  The RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his various service connected disabilities, including any relevant symptoms and the impact of these conditions on his ability to work.  The Veteran should be provided an appropriate amount of time to submit this lay evidence. 

3.  The Veteran should be afforded appropriate VA examinations in order to assess the current nature and severity of his service-connected disabilities.  The Veteran's claims folder must be made available to the examiners for review in conjunction with the examinations.  The examiners must state in the examination report that the claims file was reviewed. 

a)  Concerning the Veteran's thoracic and cervical spine disabilities, all necessary tests, including x-rays if indicated, should be performed.

The examiner must conduct detailed orthopedic examinations including addressing any limitation in range of motion of the thoracic and cervical spines.  In conducting range of motion testing of the thoracic and cervical spines, the examiner should specifically note whether - upon repetitive motion - there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination.  The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the thoracic and cervical spines are used repeatedly; and if relevant should describe the additional limitations of motion in degrees.  If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. 

b)  Concerning the Veteran's right and left knee disabilities, all necessary tests, including x-rays if indicated, should be performed.

The examiner should render findings as to whether there is instability, subluxation, or ankylosis of either the left or right knee joints.  In conducting range of motion testing, the examiner should specifically note whether - upon repetitive motion of the Veteran's left and right knees - there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination.  The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the left or right knees are used repeatedly; and if relevant should describe the additional limitations of motion in degrees.  If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report.   

c)  Concerning the Veteran's bilateral CTS, the examiner should render findings as to the severity of the currently diagnosed right and left CTS.  Any neurological and x-ray tests should be conducted to determine the level of impairment.  

d)  Concerning the Veteran's left shoulder disability, all necessary tests, including x-rays if indicated, should be performed.

The examiner must conduct a detailed orthopedic examination including addressing any limitation in range of motion of the left shoulder.  In conducting range of motion testing of the left shoulder, the examiner should specifically note whether - upon repetitive motion - there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination.  The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the shoulder is used repeatedly; and if relevant should describe the additional limitations of motion in degrees.  If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. 

d).  Concerning the Veteran's mild TBI with headaches, all necessary tests should be performed.  The examination must be conducted following the protocol in VA's Disability Examination Worksheet for Traumatic Brain Injury Examination, which may require scheduling of multiple special examinations by appropriate examiners to examine each area of dysfunction (cognitive, emotional/behavioral (psychiatric), and physical conditions (including neurological dysfunction)) that have resulted from the in-service TBI in order to determine the severity of the Veteran's headaches.  

e)  Finally, concerning the Veteran's PTSD, the examiner the examiner should report all pertinent findings and estimate the level of impairment to occupational and social functioning as a result of the Veteran's current PTSD symptoms.  The examiner should also provide a  Global Assessment of Functional (GAF) Scale score for the Veteran.

A complete rationale for all opinions expressed must be included in the examination report.  If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 

4.  Then, schedule the Veteran for a VA examination with a vocational rehabilitation specialist to determine if it is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran is precluded from substantially gainful employment on account of his service-connected disabilities, either alone or in the aggregate.  In making this determination, the specialist should take into account the Veteran's education and work history, but may not consider the Veteran's age or any impairment caused by nonservice-connected disabilities.

5.  After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issues on appeal.  If the benefits sought on appeal remain denied, provide the Veteran and his attorney a supplemental statement of the case.

The Veteran 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).

______________________________________________
M. N. HYLAND
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs