Citation Nr: 1638439 Decision Date: 09/29/16 Archive Date: 10/13/16 DOCKET NO. 08-18 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a rating in excess of 10 percent for residuals of a fracture of a right forearm including instability of the right thumb at the MCP joint with moderate degenerative changes. 2. Whether the discontinuance of a total disability rating based on individual unemployability (TDIU) from August 1, 1989 was proper. 3. Whether the discontinuance of Dependents' Educational Assistance (DEA) from August 1, 1989 was proper. WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran had active service from August 1969 to March 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Concerning the claims for restoration of entitlement to TDIU and DEA, the Veteran was afforded hearings in November 2012 with RO personnel and with the undersigned Veterans Law Judge by videoconference technology in June 2016. The transcripts have been associated with the record. With regard to the claim for an increased rating in excess of 10 percent for residuals of a fracture of a right forearm including instability of the right thumb at the MCP joint with moderate degenerative changes, the Veteran was scheduled for a hearing with RO personnel in March 2008. The Veteran did not report for the hearing. Therefore, the Board deems his request for a Board hearing withdrawn. See 38 C.F.R § 20.704(e) (2015). Additionally, the Veteran submitted disagreement with a rating decision dated February 2015, denying service connection for sleep apnea. A statement of the case was issued in March 2016. As there is no VA Form 9, or other document indicating appeal of the issue, of record; the claim is not on appeal and the Board does not have jurisdiction. This appeal was processed using VBMS (the Veterans Benefits Management System). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issue of entitlement to a rating in excess of 10 percent for residuals of a fracture of a right forearm including instability of the right thumb at the MCP joint with moderate degenerative changes is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A May 2012 rating decision severed the Veteran's entitlement to a TDIU and eligibility to DEA, effective August 1, 1989, with no prior rating decision proposing such action. CONCLUSIONS OF LAW 1. The criteria for restoration of entitlement to a TDIU, from August 1, 1989, have been met. 38 U.S.C.A. §§ 1155, 5112(b)(6) (West 2014); 38 C.F.R. §§ 3.105(e), 3.343, 4.16 (2015). 2. The criteria for restoration of eligibility for DEA, pursuant to 38 U.S.C. Chapter 35, from August 1, 1989, have been met. 38 U.S.C.A. §§ 3501, 3512 (West 2014); 38 C.F.R. §§ 3.807, 21.3020, 21.3021 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Propriety of Severance of a TDIU and DEA Under 38 C.F.R. § 3.105(e), where 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. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. In this case, the RO did not comply with the procedural actions required by 38 C.F.R. § 3.105(e) prior to terminating the Veteran's entitlement to a TDIU and DEA. There was one rating action dated May 2012 severing the Veteran's entitlement, with no prior rating decision proposing such action. Thus, such entitlement must be restored effective August 1, 1989. As this decision reinstates the Veteran's TDIU, from August 1, 1989, the Veteran's eligibility for DEA benefits under Chapter 35, Title 38, United States Code, is also reinstated from August 1, 1989. ORDER Severance of a TDIU, effective August 1, 1989, was not proper, and entitlement to a TDIU is restored, from August 1, 1989. Severance of eligibility to DEA benefits under Chapter 35, Title 38, United States Code, effective August 1, 1989, was not proper, and eligibility to DEA benefits is restored, from August 1, 1989. REMAND The Veteran testified in June 2016 that he had flare-ups with his service-connected forearm disability. However, there is no discussion of the Veteran's disability with flare-ups in the most recent, May 2012, VA examination. In response to the question of whether the Veteran reported flare-ups that impacted the function of the hand, the examiner checked neither the affirmative nor negative response. A new VA examination that specifically discusses the functional impact of the Veteran's flare-ups is therefore warranted. In addition, the Court recently held 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply. Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 provides, "The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." The new VA examination should be conducted consistent with the Court's interpretation of 38 C.F.R. § 4.59 in Correia. Additionally, a VA Form 21-4138 indicates that the Veteran had treatment for his forearm in November 2008 from Mid-South Rheumatology. The RO did not attempt to obtain such records. The Veteran should be asked to submit an additional privacy release, and if received, the treatment records should be requested on remand. Apparently, the Veteran's VA treatment records for all disabilities were last associated with the claims file in August 2014. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). In addition, VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). Accordingly, the claim remaining on appeal is REMANDED for the following action: 1. Obtain and associate with the claims file any pertinent records adequately identified by the Veteran, including records from Mid-South Rheumatology, after receiving any necessary release, and any ongoing medical records from the Jackson VAMC. 2. Schedule the Veteran for an appropriate VA examination to identify the nature, extent and severity of all manifestations of his service-connected residuals of a fracture of a right forearm including instability of the right thumb at the MCP joint with moderate degenerative changes. The claims folder should be made available to and reviewed by the examiner and all necessary tests should be performed. The examination should be conducted in accordance with the current disability benefits questionnaire, to include a discussion of the functional impact of flare-ups and consistent with the provisions of 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). 3. Then, readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and the representative, if any, should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs