Citation Nr: 1306820 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 07-22 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an increased evaluation for osteomyelitis of the left humerus, evaluated as non-compensable. 2. Entitlement to an increased evaluation for residuals of osteomyelitis of the left humerus, to include injury to Muscle Group IV, deep scarring and degenerative joint disease, evaluated as 30 percent disabling. 3. Entitlement to a total evaluation based on unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to March 1970. These matters are before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, assisting the VARO in Oakland, California. During the pendency of the appeal the Veteran's assigned evaluation for residuals of osteomyelitis of the left humerus, to include injury to Muscle Group IV, deep scarring and degenerative joint disease, was increased on two occasions. Specifically, in the May 2006 rating decision, the Seattle RO increased the evaluation for this disorder from 10 percent to 20 percent, effective from January 13, 2006, the date of the Veteran's increased evaluation claim. The Veteran expressed disagreement with the assigned evaluation and the present appeal ensued. In an April 2009 rating decision, the Oakland RO increased the evaluation for this disorder from 20 percent to 30 percent, effective from January 13, 2006, the date of the Veteran's increased evaluation claim. As this increase represents less than the maximum available benefit, it does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). In September 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge which was conducted via videoconferencing equipment. A transcript of that hearing is of record. Since the RO's last adjudication of the Veteran's claim in an April 2012 Supplemental Statement of the Case, additional evidence which is pertinent to the Veteran's claims was submitted. In statements dated in September 2012 and January 2013, the Veteran and his representative, respectively, waived RO consideration of this evidence. The waivers are associated with the Veteran's claims file. See 38 C.F.R. §§ 19.9, 20.1304(c) (2012). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. As will be discussed in greater detail below, during the pendency of the Veteran's claim for an increased evaluation, the Veteran has asserted that his service-connected osteomyelitis of the left humerus, to include residual manifestations, has rendered him unemployable. (See e.g., a January 2009 statement from the Veteran.) Accordingly, the issues listed above have been amended to include the issue of whether a TDIU rating is warranted. In October 2006, the Veteran filed claims to establish service connection for bilateral hearing loss and tinnitus. These claims were denied by the RO in an April 2007 rating decision. After the Veteran expressed disagreement with this rating action and was provided a statement of the case which continued to deny the claims, he perfected an appeal to the Board with respect to both issues in June 2007. Thereafter, in an April 2012 rating decision, the RO granted the Veteran's claims to establish service connection for tinnitus and bilateral hearing loss; 10 percent and non-compensable evaluations were assigned, respectively, effective from October 31, 2006, and June 28, 2010, respectively. Since service connection for these disorders has been established, the Veteran's appeals as to those issues have become moot. The Veteran has not yet disagreed with the assigned disability ratings or the effective dates. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Therefore, those matters have been resolved and are not in appellate status. Representation When the Veteran filed his claims for increased evaluations in January 2006, he was represented by American Veterans (AMVETS). However, in October 2006, the Veteran submitted a completed VA For 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) in favor of Disabled American Veterans. (See an October 2006 VA Form 21-22.) At all times after this submission, Disabled American Veterans has acted on the Veteran's behalf in all VA matters. Accordingly, Disabled American Veterans is the Veteran's representative of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran claims that he is entitled to increased evaluations for his service-connected osteomyelitis of the left humerus and the residuals thereof. The Board finds that VA has not satisfied its duty to assist. In January 2006, the Veteran filed a claim for increased evaluations for osteomyelitis of the left humerus and residuals of this disease, to include injury to Muscle Group IV, deep scarring and degenerative joint disease. Currently, the Veteran is in receipt of separate evaluations for osteomyelitis of the left humerus under Diagnostic Code 5000, and residuals of osteomyelitis of the left humerus, to include injury to Muscle Group IV, deep scarring, and degenerative joint disease under Diagnostic Codes 5010 - 5201. 38 C.F.R. § 4.27 (2012). The evidence reflects diagnoses of tendonosis of the left shoulder, impingement syndrome of the left shoulder, and tears in the Veteran's left rotator cuff; however, there are no opinions addressing whether any of these disorders is/are secondary to the Veteran's service-connected osteomyelitis of the left humerus. Upon Remand, it must be determined whether the Veteran's tendonosis of the left shoulder, impingement syndrome of the left shoulder, and/or left rotator cuff tears, are caused or aggravated by his service-connected osteomyelitis of the left humerus. Then, it must be determined, to the extent possible, what degree of limitation of range of motion of the left shoulder is attributable to the Veteran's service-connected osteomyelitis of the left humerus, to include residuals thereof, and/or any other disorder(s) which were caused or aggravated by this disease, as opposed to any disorder(s) unrelated to his service-connected osteomyelitis of the left humerus, which limit the range of motion of the left shoulder. Also, the evidence of record does not adequately describe the physical state of the Veteran's humerus, post-surgery, to determine whether the criteria of Diagnostic Code 5202 are approximated. Upon Remand, this should be clarified, to include the completion of any necessary testing. The evidence reflects that the September 1969 surgery resulted in "some atrophy" of the left deltoid, a part of Muscle Group III, and loss of muscle mass in the left bicep which is in Muscle Group V. Further, as noted above, the Veteran's residuals of osteomyelitis of the left humerus with injury to Muscle Group IV have been evaluated under Diagnostic Code 5304, pertaining to the muscles of the rotator cuff. However, there is no opinion concerning whether the tears in the left rotator cuff muscles are the result of his osteomyelitis of the left humerus. Upon Remand, the examiner should specifically state which muscles have been affected by the Veteran's osteomyelitis of the left humerus, to include during any surgical procedure, and complete any testing necessary to determine the severity of impairment of each muscle affected. The criteria for evaluating scars under 38 C.F.R. § 4.118, Diagnostic Codes 7800 through 7805, were revised effective October 23, 2008. These changes were specifically limited to claims filed on and after October 23, 2008, and specifically note that a Veteran is not entitled to an award under the new criteria effective before October 23, 2008. Although the Veteran has not requested review under the new Diagnostic Codes, in an effort to afford the Veteran every advantage under the applicable regulations, the Board directs that the examiner should fully describe the Veteran's scarring of the left arm and shoulder so that it may be evaluated under the applicable Diagnostic Codes in effect when he filed his claim as well as the Diagnostic Codes effective from October 23, 2008, to the present. Also, after the September 2012 hearing, the Veteran submitted a statement from Dr. Tarantino, a private physician at Kaiser Permanente, asserting that the Veteran presented for treatment for right shoulder pain in July 2012. While this statement reflects recent treatment for the right shoulder rather than the left shoulder, the Board notes that the most recent treatment record from Dr. Tarantino is dated in December 2010. In light of the August 2012 statement, it appears that the Veteran continues to receive private treatment. As such, VA should attempt to obtain these reasonably identified records. In December 2012, the Veteran's representative submitted additional signed and completed VA Forms 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA). An attempt should be made to obtain the records of treatment of the Veteran by the identified providers. TDIU As noted in the Introduction, during the pendency of the Veteran's claims for increased evaluations, he asserted that his service-connected osteomyelitis of the left humerus, to include residual disorders, renders him unemployable. (See a January 2009 statement from the Veteran.) Accordingly, a Rice-type TDIU claim has been raised by the record and is before the Board as a component of his claims for increased evaluations. Rice, supra. Since the Rice-type TDIU claim is considered a component of the Veteran's claims for increased evaluations, if granted, the effective date of the TDIU award may be assigned from January 13, 2005, one year before he filed his increased evaluation claims if the evidence of record shows that the Veteran's service-connected osteomyelitis of the left humerus and/or residual disorders rendered him unable to secure and follow a substantially gainful occupation as per 38 C.F.R. §§ 4.16(a) or (b). 38 C.F.R. § 3.400(o)(1), (2). In April 2011, the Veteran submitted a statement which the RO interpreted as a claim to establish TDIU. If granted, the effective date of the "traditional" TDIU claim may be assigned from April 6, 2010, one year before he filed his "traditional" TDIU claim. 38 C.F.R. § 3.400(o)(1), (2). In the April 2012 rating decision, the RO denied the Veteran's TDIU claim, noting that such was filed in April 2011. Indeed, review of the April 2012 rating decision reflects that the RO did not consider whether TDIU was warranted at any time prior to April 2011. Accordingly, it appears that the RO adjudicated the Veteran's "traditional" TDIU claim in the April 2012 rating decision. After the September 2012 rating decision, the Veteran submitted a statement to the RO which continued to assert that he was unemployable because of his service-connected osteomyelitis of the left humerus, to include residual disorders. This statement may be considered as a notice of disagreement with the RO's denial of the Veteran's "traditional" TDIU claim. However, if this statement is considered to be a notice of disagreement, the Veteran's "traditional" TDIU claim is in appellate status, but the matter has not been perfected as to allow the Board to undertake appellate review, and thus, the Board may only Remand the matter for issuance of a Statement of the Case. Manlincon v. West, 12 Vet. App. 238 (1999). However, the Board notes that, because the Veteran's Rice-type TDIU claim is considered to be a component of his claims for increased evaluations, effectively, the claim was perfected in June 2007. Moreover, as noted above, the effective date of the Veteran's Rice-type TDIU claim may be assigned from January 13, 2005, as opposed to his "traditional" TDIU claim, which may only be assigned effective from April 6, 2010. As such, it is advantageous to the Veteran for the Board to interpret the TDIU claim in appellate jurisdiction as the Rice-type TDIU as opposed to the "traditional" TDIU claim. In light of above, the TDIU claim before the Board is the Rice-type TDIU which is a component of his claims for increased evaluations and was perfected to the Board in June 2007. Accordingly, the Veteran's September 2012 statement is not considered to be a notice of disagreement with the April 2012 rating decision which denied the his "traditional" TDIU claim, but rather, is accepted as a statement in support of his Rice-type TDIU claim. As noted above, in the April 2012 rating decision, it does not appear that the RO considered whether TDIU was warranted at any time before the Veteran filed his "traditional" TDIU claim in April 2011, and thus, the portion of the Veteran's Rice-type TDIU claim which may be granted from January 13, 2005, to April 6, 2011, has not been adjudicated in the first instance by the RO. Godfrey v. Brown, 7 Vet. App. 398 (1995); Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, the Board must remand the Veteran's TDIU claim for adjudication by the RO in the first instance, to include consideration of whether such is warranted at any time during the pendency of the Veteran's claims file increased evaluation filed in January 2006. The issue of entitlement to service connection for a right shoulder disability, claimed as secondary to osteomyelitis of the left humerus, has been raised by the record (see August 2012 private physician's statement), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this claim. However, as the outcome of this claim can affect the outcome of the TDIU claim, the Board finds that it is inextricably intertwined therewith. As such, it must be adjudicated by the RO/AMC prior to appellate consideration of the TDIU claim. Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). Further, as the Veteran's TDIU claim is reliant upon his service-connected disabilities and the evaluations assigned for such, the TDIU claim is inextricably intertwined with the claims for increased evaluations, and service connection, being remanded herein. Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Essentially, the RO/AMC's decisions regarding those issues may affect the outcome and procedural posture of the Veteran's TDIU claim. Accordingly, the RO is reminded that the Veteran's claims remanded herein must be adjudicated/readjudicated prior to the development of the Veteran's TDIU claim. Also, the Board notes that, in October 2011, the RO provided the Veteran with a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Individual Unemployability) to complete and submit in support of his TDIU claim. Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). However, the Veteran has not submitted a completed copy of this form. Upon Remand, the Veteran should be provided another VA Form 21-8940 for him to complete and submit in support of his TDIU claim. After the Veteran has completed the VA Form 21-8940, the RO must complete any additional development which flows from the information provided by the Veteran or obtained by the RO/AMC, to include scheduling the Veteran for an appropriate VA examination and/or referring the Veteran's TDIU claim to the Undersecretary for Benefits or the Director of the Compensation and Pension Service for appropriate action as per 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with VCAA notice as to the claim for service connection for a right shoulder disability as secondary to service-connected disability, and provide the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete, with instructions to return the form to the RO. 2. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his osteomyelitis and resulting residuals, as well as for his right shoulder, bilateral hearing loss and tinnitus, and complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for the identified treatment records, for each medical treatment provider identified, not previously submitted. After obtaining any additional completed VA Forms 21-4142, the RO should attempt to obtain all identified pertinent medical records, including as identified in VA Forms 21-4142 submitted in December 2012, and associate them with the claims file, to include VA records from the Mare Island outpatient clinic dated from November 30, 2011, to the present. 3. Thereafter, schedule the Veteran for an appropriate VA examination to determine the severity, extent and manifestations of his service-connected osteomyelitis of the left humerus, to include all residual disorders. The claims folder and Virtual VA file must be made available to the examiner for review in conjunction with the examination, and the examiner must note on the examination report what records were available and reviewed in connection with the examination. Thereafter, the examiner should address the following: a. Identify all muscle(s) which has/have been affected by the Veteran's osteomyelitis of the left humerus, to include any damage to Muscle Group III (deltoid) and/or Muscle Group V (bicep) caused during surgery. b. For any muscle(s) which has/have been affected by the Veteran's osteomyelitis of the left humerus, conduct any necessary testing to determine the extent of the resulting impairment, to include strength testing. c. Confirm or rule out diagnoses of (i) tendonosis of the left shoulder, (ii) tears in any muscle(s) which comprise the left rotator cuff, and/or (iii) impingement syndrome of the left shoulder. d. For each disorder identified in part "c." above, provide an opinion concerning whether such is at least as likely as not (50 percent or greater) the result of the Veteran's service-connected osteomyelitis of the left humerus. e. For each disorder identified in part "c." above, provide an opinion concerning whether such is at least as likely as not (50 percent or greater) aggravated by the Veteran's service-connected osteomyelitis of the left humerus. f. Report range of motion findings of the left shoulder and elbow, to include upon repetitive motion testing and during flare-ups. If pain is present on motion, the Veteran should be asked to indicate at what degree the pain begins, and the examiner must report this finding. The examiner must address whether there is any weakened movement, incoordination, excess fatigability, or pain on movement after repetitions of the range of motion. Functional impairment due to weakened movement, incoordination, excess fatigability, or pain on movement must, if feasible, be assessed in terms of the additional degrees of limitation of motion lost. g. To the extent possible, differentiate between the loss of range of motion of the left shoulder and elbow due to osteomyelitis of the left humerus and any resulting disorder as opposed to limitation of range of motion of either joint due to any disorder identified in part "c." above which was not found to be caused or aggravated by osteomyelitis of the left humerus. If such differentiations cannot be provided without resorting to speculation, it must be so stated, and the examiner must provide the reasons why doing so would require speculation. h. If there is an indication that the Veteran may be currently experiencing a recurrence of osteomyelitis of the left humerus, such should be confirmed by appropriate testing, to include a bone scan. i. Describe any scarring of the Veteran's left arm and shoulder which is the result of osteomyelitis of the left humerus, to include surgical scarring. All descriptions must be sufficient so that the Veteran's scarring may be evaluated under the rating criteria prior to and after October 23, 2008. j. Describe the physical state of the Veteran's left humerus. Specifically, the examiner should comment whether the September 1969 surgery resulted in a physical state of the left humerus which approximates (i) fibrous union of the head of the humerus, (ii) nonunion or a false flail joint, or (iii) actual loss of the humeral head. The VA clinician is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. The clinician is requested to provide a complete rationale for his or her opinions, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. Associate a copy of the examination report with the claims file. The Veteran should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claim, to include denial. See 38 C.F.R. § 3.655 (2012). 4. Thereafter, readjudicate the Veteran's claims for increased evaluations for osteomyelitis of the left humerus and residual disorders with consideration of all evidence of record, to include additional evidence received since issuance of the most recent supplemental statement of the case in April 2012. In doing so, the RO must consider whether referral of the Veteran's claims to the Director of Compensation and Pension for extraschedular consideration under 38 C.F.R. § 3.321(b) (2012) is appropriate. If any benefit sought is not granted to the fullest extent, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond. 5. Fully develop and adjudicate the issue of entitlement to service connection for a right shoulder disorder as secondary to service-connected osteomyelitis of the left shoulder and residual disorders in a "blue code sheet" rating decision. Any additional development indicated should be completed, to include obtaining a clinical examination and opinion as to whether it is at least as likely as not that a right shoulder disability is proximately due to, or chronically aggravated by, service-connected left shoulder disability. Notice of the determination and the Veteran's appellate rights should be issued to the Veteran and his representative. Only if an appeal is completed as to the matter should the issue be returned to the Board for appellate consideration. 6. Thereafter, schedule the Veteran for a general medical examination to determine whether all service-connected disabilities, considered in combination, render the Veteran unemployable. The clinician is requested to furnish an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's service-connected disabilities render him unemployable. The VA clinician is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. The clinician is requested to provide a complete rationale for his or her opinions, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. The clinician should review the claims folder, to include this remand, as well as the Veteran's Virtual VA file and this should be noted in the accompanying medical report. The Veteran should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claim, to include denial. See 38 C.F.R. § 3.655 (2012). 7. After undertaking any other development deemed appropriate, the RO should readjudicate the Veteran's TDIU claim, with consideration of the rating period on appeal from January 2005. The RO must consider, if appropriate, whether referral of the Veteran's claim to the Director of Compensation and Pension for extraschedular consideration under 38 C.F.R. § 4.16(b) (2012) is warranted. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the Veteran and his representative with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration as warranted. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ U.R. POWELL 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).