Citation Nr: 1343445 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 07-17 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to a disability rating higher than 20 percent prior to May 1, 1996, and higher than 30 percent, from May 1, 1996 to October 5, 2005, for internal derangement of the left knee, status post surgery. 2. Entitlement to an initial compensable rating for diverticulosis. 3. Entitlement to an effective date prior to January 7, 2008, for a compensable rating for acromioclavicular separation and glenohumeral instability of the right (dominant) shoulder. 4. Entitlement to an effective date prior to January 7, 2008, for a compensable rating for degenerative joint disease of the left shoulder. 5. Entitlement to an initial rating higher than 20 percent for herniated nucleus pulposus of the lumbar spine, post surgery. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION The Veteran had active service from October 1980 to August 1983. This matter comes before the Board of Veterans' Appeals (BVA or Board) from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Veteran requested several hearings before the Board. A hearing was conducted in February 2004 for the issue of entitlement to an initial rating higher than 20 percent for herniated nucleus pulposus of the lumbar spine, post surgery, and at that hearing, the issue of entitlement to an increased rating for the left knee was withdrawn, as discussed below. A transcript is associated with the claims file. The Board notes that the February 2004 hearing was conducted before a Veterans Law Judge who is no longer employed at the Board. The Veteran was informed of his right to have another hearing for the issue of entitlement to an increased rating for his lumbar spine, but declined that opportunity. See July 2013 letter. An additional hearing was conducted in March 2008 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. This hearing pertained to the issues of entitlement to an extension of the temporary total evaluation assigned for lumbar spine herniated nucleus pulposus under 38 C.F.R. § 4.30 beyond May 31, 2005, which was decided in a October 2010 BVA decision, and entitlement to a compensable initial rating for diverticulosis, which is discussed in the REMAND portion below. In October 2010, the Board remanded the claim of entitlement to a compensable initial rating for diverticulosis for additional development. The issues of entitlement to an effective date prior to January 7, 2008, for a compensable rating for acromioclavicular separation and glenohumeral instability of the right (dominant) shoulder, entitlement to an effective date prior to January 7, 2008, for a compensable rating for degenerative joint disease of the left shoulder, entitlement to an initial rating higher than 20 percent for herniated nucleus pulposus of the lumbar spine, post surgery, and entitlement to an initial compensable rating for diverticulosis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT In February 2004, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal for entitlement to a disability rating higher than 20 percent prior to May 1, 1996, and higher than 30 percent, from May 1, 1996 to October 5, 2005, for internal derangement of the left knee, status post surgery, was requested. CONCLUSION OF LAW The criteria for withdrawal of the appeal for entitlement to a disability rating higher than 20 percent prior to May 1, 1996, and higher than 30 percent, from May 1, 1996 to October 5, 2005, for internal derangement of the left knee, status post surgery, by the Veteran (or his or her authorized representative) have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to a Disability Rating Higher Than 20 Percent Prior to May 1, 1996, and Higher Than 30 percent, from May 1, 1996 to October 5, 2005, for Internal Derangement of the Left Knee, Status Post Surgery The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2013). Withdrawal may be made by the Appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Board notes that the Veteran submitted a notice of disagreement in June 1995 to a May 1995 rating decision continuing a 20 percent disability rating for his left knee. The Veteran was issued a statement of the case in August 1995 and he completed a VA Form 9 that was received in April 1996. In a November 1996 rating decision, the Veteran's disability rating for the left knee was increased to 30 percent, effective May 1, 1996. In a November 1997 Board decision, the Veteran's claim for an increased rating for his left knee was denied. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (CAVC), which vacated the November 1997 decision and remanded it back to the Board. In April 1999, the Board remanded the Veteran's claim for an increased rating for his left knee for further development. A rating decision in August 2003 continued the Veteran's 30 percent rating for the left knee, from May 1996. In a February 2004 Board hearing, the Veteran indicated that he wished to withdraw the appeal of entitlement to an increased rating for his left knee. See February 2004 BVA Hearing Transcript, page 2. The Veteran has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER Entitlement to a disability rating higher than 20 percent prior to May 1, 1996, and higher than 30 percent, from May 1, 1996 to October 5, 2005, for internal derangement of the left knee, status post surgery, is dismissed. REMAND Entitlement to an Initial Compensable Rating for Diverticulosis The Board remanded the claim for entitlement to an initial compensable rating for diverticulosis in October 2010. Inasmuch as the Board sincerely regrets another remand of this matter, the development directed by the Board in its last remand was not accomplished. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). During the March 2008 Board hearing, the Veteran testified that he had a VA examination in January or February of that year in connection with his claim for an increased rating for diverticulosis. In the October 2010 Remand, the Board noted it was possible the Veteran was referring to the January 2008 VA orthopedic examination, the reports from which were of record; however, the RO was instructed to obtain any VA examinations completed after February 2007, to include January 2008, that addressed the severity of the Veteran's diverticulosis. The Board noted that if no such examination was conducted, that fact should be documented for the record. The Board notes that additional copies of VA examinations from February 2007 were associated with the claims file and the Veteran was afforded new VA examinations in February 2011 and February 2012; however, there is no indication confirming whether the Veteran was afforded a VA examination for his diverticulosis claim between February 2007 and February 2011. The RO was instructed to document if there were no records of an examination during this time period, but there does not appear to be any notation in the claims file. As such, given the possibility that this VA examination report is absent from the record, the Board must remand the case to verify whether such VA examination in available. Id. Also, the Board has reviewed the examination reports dated in 2011 and 2012; however, it is not clear whether the symptoms noted in the examination reports are due to the service-connected diverticulosis or whether it is due to other causes. Another VA examination is needed to specifically identify all symptoms due to the Veteran's service-connected diverticulosis. Entitlement to an Effective Date Prior to January 7, 2008, for a Compensable Rating for Acromioclavicular Separation and Glenohumeral Instability of the Right (dominant) Shoulder and Entitlement to an Effective Date Prior to January 7, 2008, for a Compensable Rating for Degenerative Joint Disease of the Left Shoulder The Veteran submitted a claim for entitlement to service connection for a bilateral shoulder disorder in March 2007. In March 2008, the Veteran was granted service connection for acromioclavicular separation and glenohumeral instability of the right shoulder, with a noncompensable rating effective March 27, 2007 and a rating of 10 percent, from January 7, 2008. He was also granted service connection for degenerative joint disease of the left shoulder, with a noncompensable rating effective March 27, 2007 and a 10 percent rating, effective January 7, 2008. The Veteran submitted a notice of disagreement to the effective dates for the awards of service connection in April 2008. A statement of the case was issued in April 2009 and the Veteran completed a VA Form 9 in May 2009. The Veteran asserted in his VA Form 9, received in May 2009, that he wants to testify before a Veterans Law Judge via a videoconference at the regional office. Under 38 C.F.R. § 20.703, a Veteran can request a hearing before the Board of Veterans' Appeals at a Department of Veterans Affairs field facility when submitting the substantive appeal (VA Form 9) or anytime thereafter. There is no evidence in the claims file or Virtual VA indicating that the Veteran has withdrawn his request. Because such hearings for the Board are scheduled by the RO, a remand of this matter is required in this case. See 38 C.F.R. § 20.704. Entitlement to an Initial Rating Higher Than 20 Percent for Herniated Nucleus Pulposus of the Lumbar Spine, Post Surgery The Veteran was granted entitlement to service connection for herniated nucleus pulposus of the lumbar spine, post surgery, in an October 2000 rating decision. At the time, his lumbar spine disability was assigned a 20 percent disability rating, effective October 4, 1996. In November 2000, the Veteran submitted a notice of disagreement to the rating assigned. A statement of the case was issued in February 2002 and the Veteran completed a substantive appeal, which was received in March 2002. As discussed previously, the Veteran was afforded a hearing for this issue in February 2004, before a Board Member no longer employed at the Board. The Veteran has declined an opportunity to be afforded a new hearing. See July 2013 letter. In January 2005, the Veteran submitted an additional claim for a temporary total disability rating for convalescence due to his lumbar spine disability, from July 25, 1996 to March 19, 1997. The Veteran also requested temporary total disability for convalescence for back surgery that occurred in March 2005. See January 2005 statement. In August 2005, the Veteran was granted a temporary total evaluation for his lumbar disability, from March 31, 2005 and the 20 percent rating was to resume effective June 1, 2005. A temporary total evaluation due to surgery for his lumbar spine on March 19, 1997 and July 25, 1996 was denied under provisions of 38 C.F.R. § 4.30. A February 2006 Supplemental Statement of the Case (SSOC) continued the Veteran's 20 percent rating for his lumbar disability. Subsequently, in March 2006, the effective date for the Veteran's lumbar disability was changed to an earlier date of April 10, 1996. A total rating was assigned effective July 25, 1996 based on surgical or other treatment necessitating convalescence. A 20 percent rating as assigned from February 1, 1997. A 100 percent rating was assigned effective March 19, 1997 and a 20 percent rating was assigned from June 1, 1997. In a September 2006 rating decision, a temporary total rating under Paragraph 30 38 C.F.R. § 4.30) beyond June 1, 2005 for the Veteran's lumbar disability was denied. The Board remanded this issue in October 2006, with instructions for the RO to issue a Statement of the Case (SOC). A SOC was issued in April 2007, denying the Veteran's appeal. The Veteran submitted a timely substantive appeal in May 2007, which was denied again in a February 2008 SSOC. In July 2008, the Veteran submitted another claim for an increase in his lumbar spine disability. A May 2009 rating decision continued the Veteran's 20 percent rating. An October 2010 Board decision granted the Veteran's claim for entitlement to an extension of the temporary total evaluation for his service-connected lumbar spine disability to September 30, 2005. An April 2011 rating decision continued the 20 percent rating, effective October 1, 2006. As a result, the Veteran's lumbar spine disability was assigned a 20 percent rating from April 10, 1996 to the present, except for the periods of July 25, 1996 to February 1, 1997, March 19, 1997 to June 1, 1997 and March 31, 2005 to September 30, 2005, where temporary total ratings were assigned. From the procedural history in the file, it appears as though the claims for entitlement to a temporary total rating due to his lumbar spine disability and his claim for entitlement to an initial rating higher than 20 percent for his lumbar spine disability were intertwined and subsequently, his original appeal for entitlement to a rating higher than 20 percent for the lumbar spine disability was never fully adjudicated. Although the Veteran has been granted ratings of 100 percent based on surgical or other treatment necessitating convalescence for several periods, as the maximum benefits have not yet been allowed for the Veteran's disability, the Board finds this issue is still in appellate status as an initial increased rating issue. The Board finds a remand is necessary to afford the Veteran a contemporaneous examination. The Board notes that the most recent VA examination for the Veteran's lumbar spine disability was in February 2011, more than two years ago. Furthermore, a review of the claims file reveals that there are no updated medical treatment records in the claims file or in Virtual VA. The Board finds a remand is necessary to afford the Veteran a contemporaneous examination to determine the current severity of his disability. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); see Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Any updated VA or private treatment records should also be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Regarding the appeal for entitlement to an earlier effective date prior to January 7, 2008 for a compensable evaluation for degenerative joint disease of the left shoulder and for acromioclavicular separation and glenohumeral instability of the right shoulder, the RO should take appropriate steps to schedule the Veteran for a hearing at the RO via videoconference before a Veterans Law Judge at the earliest opportunity, following the usual procedures as set forth in 38 U.S.C.A. § 7107 (West 2002 & Supp. 2012) and 38 C.F.R. § 20.704 (2013). 2. Obtain and associate with the claims file all relevant updated VA and private treatment records concerning the issues on appeal. 3. The RO should determine if a VA examination regarding the severity of the Veteran's diverticulosis was conducted subsequent to February 2007, to include in January 2008 (excluding VA examinations conducted in February 2011 and February 2012). If so, the report should be obtained and associated with the claims file. If the records are not available or a VA examination was not conducted in this time frame, a negative response should be obtained and associated with the claims file. 4. Schedule the Veteran for a VA examination to determine the current severity of the Veteran's diverticulosis. The examiner should address the following: a) Identify all symptoms attributable to the service-connected diverticulosis. b) For each symptom identified, state the current severity of such symptom. In this regard, the examiner should state how the symptom impacts the Veteran, including the impact it has on his ability to work. A complete rationale for all findings reported should be included in the examination report. The examiner should take into consideration the Veteran's lay statements concerning his symptoms and then state whether they are related to the service-connected diverticulosis. The examiner should also take into consideration the examination reports and the colonoscopy the Veteran had. 5. Afford the Veteran a VA examination to determine the current severity of his lumbar spine disorder. The examiner must specify the range of motion on forward flexion, backward extension, left and right lateral flexion (side bending), and left and right rotation (twisting). These ranges of motion should be measured in degrees, with normal range of motion additionally indicated for comparison. If motion is so restricted that there is what amounts to ankylosis, favorable or unfavorable, then this must be expressly indicated. The examiner must also determine whether there are objective clinical indications of pain/painful motion, weakened movement, premature/excess fatigability, or incoordination and, if feasible, these determinations should be expressed in terms of the degree of additional range-of-motion loss due to such factors. This includes instances when these symptoms "flare-up" or when the lumbar spine is subject to prolonged, repetitive motion or use over a period of time. And this determination also should be portrayed, if feasible, in terms of the degree of additional range of motion lost due to these factors. The examiner should comment on whether the Veteran's service-connected lumbar spine disability involves incapacitating episodes, periods of acute signs and symptoms due to Intervertebral Disc Syndrome (IVDS) requiring bed rest prescribed by a physician and treatment by a physician, and, if so, the frequency and total duration of them during the past 12 months. The examiner should identify all neurological impairment caused by the service-connected back disability. In this regard, the examiner should identify any affected nerve and then state the severity of nerve impairment in terms of slight, moderate, moderately severe or severe. The examiner should specifically identify the function impacted by the nerve impairment. The claims file, to include a copy of this Remand, should be made available to the examiner for review in conjunction with the opinion or examination, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. The claims file must be properly documented regarding any notifications to the Veteran as to the scheduled examination. 6. After all of the above actions have been completed, readjudicate the claims for entitlement to an initial compensable rating for diverticulosis and entitlement to an initial rating higher than 20 percent for herniated nucleus pulposus of the lumbar spine, post surgery. If the claims remain denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. After the hearing is conducted, or in the event the Veteran withdraws his request for hearing, or fails to appear at the scheduled hearing, the claims for entitlement to an effective date prior to January 7, 2008, for a compensable rating for acromioclavicular separation and glenohumeral instability of the right (dominant) shoulder and entitlement to an effective date prior to January 7, 2008, for a compensable rating for degenerative joint disease of the left shoulder should be returned to the Board. The Board intimates no opinion as to the ultimate outcome of this 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). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs