Citation Nr: 1715768 Decision Date: 05/10/17 Archive Date: 05/22/17 DOCKET NO. 10-35 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for status post scaphoid fracture of the left wrist. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from October 1996 to August 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The rating decision, inter alia, granted service connection and a 10 percent rating for a left wrist disability (status post scaphoid fracture of the left wrist), effective June 6, 2006. The case was later transferred to the RO in Atlanta, Georgia and then to the RO in San Diego, California. A September 2009 rating decision assigned a temporary total (100 percent) convalescent rating for the period from June 19, 2009, to July 31, 2009, pursuant to 38 C.F.R. § 4.30 (2016). As this award did not represent a total grant of benefits sought, the claim remained on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The case was then transferred to the RO in Columbia, South Carolina. A June 2010 rating decision assigned a temporary total (100 percent) convalescent rating for the period from July 31, 2009, to September 30, 2009, pursuant to 38 C.F.R. § 4.30. Again, this award did not represent a total grant of benefits sought; therefore, the claim remained on appeal. AB, 6 Vet. App. at 38. In March 2015 and May 2016, the Board remanded this appeal for further development. The March 2015 Board remand noted that the issue of entitlement to a TDIU was raised by the evidence of record and considered part-and-parcel of the increased rating claim on appeal, Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); thus, this issue is listed on the title page. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND While further delay is regrettable, the Board finds that additional development is necessary. In March 2015, the Board remanded this appeal to, inter alia, afford the Veteran a VA examination to determine the current severity of his left wrist disability. A VA examination was requested from the VAMC in Asheville, North Carolina on June 24, 2015. A June 25, 2015 duty to assist letter sent to the Veteran by the RO mentioned that this examination had been requested and informed the Veteran that the VAMC would send him notice of the date and time of the examination; the notice letter also advised of the consequences for a failure to report to the examination. A copy of a July 27, 2015 e-mail was obtained from the VAMC in Asheville, North Carolina; the e-mail indicated that the Veteran had failed to report to the examination. An April 2016 brief submitted by the Veteran's representative, however, noted that the Veteran never received notice of the scheduled examination. In May 2016, the Board remanded this appeal once more. The Board ordered that the notice letter informing the Veteran of the date and time of his July 2015 VA examination be associated with the claims file. If it was determined that the Veteran was not properly notified of the examination, or if the Veteran provided good cause for the failure to report, the examination was to be rescheduled. On June 24, 2016, the Appeals Management Center (AMC) contacted the VAMC in Asheville, North Carolina regarding notice for the examination to which the Veteran failed to report. The point of contact at the VAMC reported that the Veteran had been sent a notice letter for the examination and he was also called and informed of the examination. The Board notes, however, that the actual notice letter was not obtained or associated with the claims file. Also on June 24, 2016, a new VA examination was requested from the VAMC in Asheville, North Carolina. The AMC attempted to call the Veteran to inform him of the examination request but received a response that he was not taking any calls at this time. On July 12, 2016, a VA Form 20-572, Request for Change of Address, was faxed to the Evidence Intake Center. It informed VA that the Veteran had relocated to Ohio, and that the change of address was temporary - approximately six months. On July 15, 2016, the scheduled examination at the VAMC in Asheville, North Carolina was cancelled, with the reason for cancellation noted as "Veteran failed to RSVP." The Board notes that at the time of cancellation, the Veteran was residing in Ohio. On August 19, 2016, the RO called the Veteran. The Veteran confirmed his new address in Ohio and reported that he had received treatment from the VAMC in Dayton, Ohio. The Board notes that these pertinent treatment records were obtained and associated with the claims file. In September 2016, a supplemental statement of the case (SSOC) was issued, and it denied the Veteran's claims based on a failure to report to the examination. The Veteran must be rescheduled for an examination. On remand, the AOJ should contact the Veteran and confirm his current address. Thereafter, he should be scheduled for a new VA examination at an appropriate VAMC. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c). The Veteran must be provided written notice of the time, date, and location of this examination, and the notice should also inform him of the consequences for failing to report to the examination. See 38 C.F.R. § 3.655(b). A copy of this notice letter must be associated with the claims file. Hyson v. Brown, 5 Vet. App. 262, 265 (1993) (VA has the burden to demonstrate that notice was sent to the claimant's last address of record). Moreover, in Correia v. McDonald, the United States Court of Appeals for Veterans Claims (Court) held that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. The final sentence of section 4.59 directs that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. The new VA examination must contain these required findings. Additionally, any outstanding VA treatment records should be associated with the claims file, to include records residing with the VAMC in Dayton, Ohio. 38 U.S.C.A. § 5103A(c). Adjudication of the issue of entitlement to a TDIU is deferred as it is inextricably intertwined with the increased rating issue remanded for further development. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the appeal is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records, to include any records residing with the VAMC in Dayton, Ohio. 2. Contact the Veteran and confirm his current address. Schedule him for a VA examination at an appropriate VAMC to determine the extent and severity of his service-connected left wrist disability. The entire claims file, including any electronic files, must be reviewed by the examiner. All indicated tests must be conducted, including x-ray, and all symptoms associated with the Veteran's service-connected left wrist disability must be reported in detail. a) The examiner must conduct a thorough orthopedic examination of the Veteran's left wrist and provide diagnoses of any pathology found. In examining the wrist, the examiner must document any limitation of motion (in degrees), to include providing the point at which painful motion begins. The examiner must also indicate whether there is any guarding of the left wrist on motion and the degrees at which the guarding starts. The service-connected left wrist joint should be tested for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. These findings are required by VA regulations as interpreted by courts. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary or is not medically appropriate in this case; he or she should clearly explain why that is so. b) The examiner is to indicate whether pain or weakness significantly limits functional ability during flare-ups or when the left wrist is used repeatedly over a period of time. The examiner must also be asked to determine whether the joints exhibit weakened movement, excess fatigability or incoordination; if feasible, these determinations must be expressed in terms of additional range of motion loss due to any weakened movement, excess fatigability or incoordination. If it is not feasible to express any functional impairment caused by pain, weakened movement, excess fatigability or incoordination that is found, in terms of additional range of motion loss, the examiner must so state why this is so. c) The examiner must also indicate whether there is limitation of motion of the Veteran's fingers of the left hand, or interference with overall function of the left hand as a result of the service-connected left wrist disability. The examiner must report range of motion, in degrees, of each of the left hand fingers and must note any objective evidence of pain on motion. d) The examiner must further list all neurological impairment caused by the service-connected left wrist disability. The examiner must identify any affected nerve, and state the severity of the impairment of the nerve affected. The examiner must also provide an opinion as to whether any such neurological impairment equates to "mild," "moderate," "moderately severe" or "severe," incomplete paralysis or complete paralysis of any nerve. e) The examiner is further asked to comment on the Veteran's ability to function in an occupational environment in light of his service-connected left wrist disability. In discussing the functional impairment caused solely by the service-connected left wrist disability, the examiner should document any reported education and work experience. 3. The Veteran must be provided written notice of the time, date, and location of this examination, and the notice should also inform him of the consequences for failing to report to the examination. See 38 C.F.R. § 3.655(b). A copy of this notice letter must be associated with the claims file. 4. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. 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 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. _________________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, 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).