Citation Nr: 1802904 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 08-19 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left upper extremity due to muscle group IV injury, from July 15, 2014 forward. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1959 to June 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Veteran testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ) in May 2011. A transcript is of record. By way of history, in October 1962 the RO granted service connection for neuropathy of the left shoulder with involvement of the suprascapular nerve, muscle group IV. This disability was rated as 10 percent disabling based upon muscle impairment under Diagnostic Code 5304, effective from June 9, 1962. Thereafter, in October 2004 the RO awarded an increased rating of 20 percent under Diagnostic Code 5201, effective from July 27, 2004. In making this determination, the RO noted that the condition was formerly evaluated under Diagnostic Code 5304 but was now evaluated under Diagnostic Code 5201 to reflect the functional loss and loss of range of motion of the left shoulder. In the September 2007 rating decision on appeal, the RO denied entitlement to a rating in excess of 20 percent for neuropathy of the left shoulder with involvement of the suprascapular nerve, muscle group IV, now listed under Diagnostic Code 5304-5201. In March 2015, the RO awarded a 20 percent rating for peripheral neuropathy of the left upper extremity under Diagnostic Code 5304-8515, separate and apart from the 20 percent rating assigned for limitation of motion of the left upper extremity under Diagnostic Code 5304-5201. This separate rating was assigned effective from July 15, 2014, forward and is the issue currently on appeal. In May 2016 and May 2017, the Board remanded this issue for further development. That development having been addressed, the case has since returned to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. While the Board sincerely regrets the delay, the Veteran's claim for entitlement to an increased rating in excess of 20 percent for peripheral neuropathy of the left upper extremity due to muscle group IV injury is again remanded for further development in accordance with VA's duty to assist. Such development is necessary to aid the Board in making an informed decision, and will help ensure that the claim is afforded every consideration. In May 2017, the Board remanded the claim so that the Veteran could be afforded an additional VA examination to reconcile the medical evidence within the July 2014 and June 2016 VA C&P Examination Reports. An examination detail report dated June 15, 2017 reflects that the Veteran was a "NO SHOW" for the examination. See June 2017 Request for Physical Examination. The RO thus determined that he failed to appear for this scheduled VA examination and that he failed to call either the VA Medical Center (VAMC) where it was to be held or the RO/AMC to cancel his examination or provide justifiable reason or explanation (i.e., the required good cause) for his failure to report. See 38 C.F.R. § 3.655 (2017). The RO consequently readjudicated the claim based on the existing evidence of record, and, in a November 2017 Supplemental Statement of the Case (SSOC), continued to deny a higher rating for the Veteran's peripheral neuropathy of the left upper extremity due to muscle group IV injury, specifically noting his failure to appear for the scheduled examination. See 38 C.F.R. § 3.655(b); see also Turk v. Peake, 21 Vet. App. 565 Caselaw Positive (2008). In this regard, the Board notes that until recently, the United States Court of Appeals for Veterans Claims (Court/CAVC) had held that VA was entitled to the presumption of administrative regularity that VA employees had properly discharged their official duty to notify a Veteran of a scheduled VA examination. This presumption of administrative regularity could be rebutted by clear evidence to the contrary. The Court also held that the absence of a copy of the notice letter in the claims file did not constitute clear evidence to rebut this presumption of administrative regularity. See Kyhn v. Shinseki, 24 Vet. App. 228, at 236 Caselaw Warning (2011) (Kyhn II). However, the higher Federal Circuit Court later issued Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). In Kyhn the Federal Circuit Court vacated the lower Court's Kyhn II decision, holding that the Court had relied upon extra-record evidence to make a finding of fact in the first instance in striking down the lower Court's application of the presumption of administrative regularity in a case in which notification of an upcoming VA examination was not explicitly of record. Id; but see Baxter v. Principi, 17 Vet. App. 407 Caselaw Caution (2004) (holding that that the Board need not examine whether the presumption of regularity has been rebutted unless and until the Veteran, at a minimum, alleges that he did not receive the document in question). In the instant case, the record does not contain any letter or other document reflecting that the Veteran was ever notified of his scheduled examination. Additionally, the Board notes that the Veteran's representative has requested that the Veteran be provided a second opportunity to undergo a VA examination. See November 2017 Appellate Brief. Thus, in light of the Federal Circuit Court's ruling in Kyhn and the absence of verification that the Veteran received proper notice of his VA examination, another examination must be rescheduled and the Veteran must be provided the required notice. Such an examination is particularly important because, as noted by the Board in its May 2017 remand, the previous July 2014 and June 2016 VA examination reports are not sufficient to allow the Board to decide this claim. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); citing Caluza v. Brown, 7 Vet. App. 498, 505 -06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability . . . the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 Caselaw Caution (1994); VAOPGCPREC 11-95 (1995). See also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); 38 C.F.R. § 4.40 (2017); DeLuca v. Brown, 8 Vet. App. 202, 205-6 (1995). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Verify the Veteran's current mailing address. If attempts to reach the Veteran at this telephone number are unsuccessful, undertake additional efforts to verify his current mailing address, to include contacting his representative for assistance. 2. Make arrangements to obtain the Veteran's complete VA treatment records, dated since October 2017. 3. Thereafter, schedule the Veteran for a VA neurological examination to determine the severity of his service-connected left upper extremity disorder. A copy of the letter notifying the Veteran of the date, time, and location of the examination should be associated with the claims folder. Further, the claims folder should be made available to and reviewed by the examiner. The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected left upper extremity disability. The examiner should identify any neurological findings related to the service-connected disability and fully describe the extent and severity and those symptoms. The examiner must identify the specific nerve(s) affected. The examiner should specifically determine whether the median, upper radicular, musculocutaneous and/or suprascapular nerves are affected. All necessary tests, including an EMG/NCS, if indicated, should be performed. If found, the degree of paralysis caused by the service-connected disability should be described. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Next, review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 5. Finally, readjudicate the claim on appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The appellant 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 2014). _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).