Citation Nr: 1604894 Decision Date: 02/09/16 Archive Date: 02/18/16 DOCKET NO. 14-10 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for myofascial neck syndrome. 2. Entitlement to an initial evaluation in excess of 10 percent for metatarsalgia right foot. 3. Entitlement to a compensable initial evaluation for ventral hernia. 4. Entitlement to an initial evaluation in excess of 20 percent for right ankle strain. 5. Entitlement to a compensable initial evaluation for tinea versicolor. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel l INTRODUCTION The Veteran had active service from September 1981 to September 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2012, July 2013 and February 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The December 2012 rating decision granted service connection for myofascial neck syndrome and assigned a 10 percent evaluation effective November 12, 2010, granted service connection for metatarsalgia of the right foot and assigned a 10 percent evaluation effective November 12, 2010, and granted service connection for a ventral hernia and assigned a noncompensable evaluation effective November 12, 2010. The July 2013 rating decision granted service connection for a right ankle strain and granted a 10 percent evaluation effective December 27, 2012. The February 2014 rating decision, in pertinent part, granted service connection for tinea versicolor and assigned a noncompensable evaluation effective August 21, 2013. During the pendency of the appeal, a May 2015 rating decision granted a 20 percent evaluation for right ankle strain effective December 27, 2012, the date for which service connection was established. However, because this increased evaluation does not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities, the Veteran's claim for an increased rating for a right ankle strain remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal). In his March 2014 substantive appeal, which perfected three issues before the Board, the Veteran requested a Travel Board hearing before a Veterans Law Judge. In a June 2015 substantive appeal, submitted for the remaining issues on appeal, the Veteran did not request a Board hearing. VA correspondence in August 2015 and September 2015 notified the Veteran that a Board hearing had been scheduled for September 25, 2015. However, the Veteran did not report for the hearing and no good cause was shown for his absence; therefore, the hearing request is deemed withdrawn. 38 U.S.C.A. § 20 .704 (d) (2015). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Initially, the Board notes that a Veteran must be afforded the full right to representation in all stages of an appeal. 38 C.F.R. § 20.600 (2015). Here, the Veteran completed a VA Form 21-22, Appointment of Veterans Service Organization as Veteran's Representative, initially in December 2012, in favor of the Disabled American Veterans. The record does not reflect that the Veteran has revoked such appointment. In this regard, the Board notes that when a Veteran has appointed a representative, the RO must afford that representative the opportunity to execute a VA Form 646, Statement of Accredited Representative in Appealed Case, prior to certification of the appeal to the Board. The September 2014 VA Form 8, Certification of Appeal, which initially certified three issues to the Board, does not reflect a VA Form 646 was of record and the July 2015 VA Form 8, issued for the remaining issues reflects VA Form 646 was of record. However, a VA Form 646 for any issue on appeal is not associated with the record before the Board. The absence of a VA Form 646 indicates that the Veteran was not afforded his full right to representation during all stages of the appeal. Id. As such, on remand, the Disabled American Veterans must be given an opportunity to offer a written argument on the Veteran's behalf, and this argument must be considered by the RO. A VA neck examination was afforded to the Veteran in October 2012 and reflects that the Veteran reported flare-ups with regard to his service-connected neck disability. However, the October 2012 examiner did not address the level of additional impairment, if any, the flare-ups may have caused nor whether it was feasible to portray the additional impairment in terms of additional limitation in range of motion in degrees. Additionally, an October 2012 VA miscellaneous foot examination report did not address any additional limitation due to pain, weakness, fatigability or incoordination, nor address such in terms of any additional loss of range of motion loss or during flare-ups. Similarly, in June 2013, a VA ankle examination was afforded to the Veteran, during which the Veteran reported twice daily flare-ups which limited activity by 100 percent. However, the June 2013 VA examiner, in response to a question to describe additional limitation due to pain, weakness, fatigability or incoordination, and if feasible, to express such in terms of the degrees of additional range of motion loss due to pain on use or during flare-ups, stated the Veteran's right ankle lost 43 percent of range of motion after three repetitions (done slowly) due to pain and stiffness. Such does not specifically additionally address flare-ups, including the feasibility of determining any additional loss of range of motion in degrees. Thus, the Board finds new VA examinations for the Veteran's service-connected myofascial neck syndrome, metatarsalgia of the right foot and right ankle strain are warranted. See 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2015); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Finally, in light of the remand, updated VA treatment records should be obtained. The record reflects the Veteran most recently received VA treatment from the VA North Texas Health Care System in February 2014. Thus, on remand, updated VA treatment records from the VA North Texas Health Care System, to include all associate outpatient clinics, since February 2014, should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2). See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's updated VA treatment records from the VA North Texas Health Care System, to include all associate outpatient clinics, since February 2014, and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. Thereafter, schedule the Veteran for an appropriate examination to assess the nature and severity of his service-connected myofascial neck syndrome, metatarsalgia of the right foot and right ankle strain. The claims folder must be provided to the examiner in conjunction with the examination(s). All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, must be accomplished. The examiner must comment on the nature and severity of the symptomatology attributable to the Veteran's service-connected myofascial neck syndrome, metatarsalgia of the right foot and right ankle strain. The examiner(s) should specifically note whether any reported flare-ups result in additional functional limitation, and if feasible, determine any additional limitation in range of motion, in degrees. If it is not feasible to make that determination, the examiner(s) should explain why not and what information would be needed in order to make a determination. The examiner should also identify any neurological impairment(s) associated with the Veteran's neck disability, including any impairment manifested by pain and numbness and describe any symptoms and functional limitations associated with such impairment(s). The VA examiner(s) should provide a rationale for all opinions rendered with references to the evidence of record. If an opinion cannot be given without resorting to mere speculation, the VA examiner should state so and further provide a reason for such conclusion. 3. The Veteran must be notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). 4. The RO must afford the Veteran's representative, Disabled American Veterans, the opportunity to file a VA Form 646, Statement of Accredited Representative in Appealed Case, including arguments in support of the claims on appeal before the case is returned to the Board for further appellate review. The opportunity afforded, and any reply received, must be documented in the claims file. 5. Finally, after undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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) (2015).