Citation Nr: 1804266 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 92-22 957 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to a rating in excess of 40 percent for degenerative joint disease (DJD) of the cervical spine on an extra-schedular basis pursuant to 38 C.F.R. § 3.321 (b)(1). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran had active military service from May 1974 to May 1976. This appeal to the Board of Veterans' Appeals (Board) originally arose from a June 1991 rating decision in which the RO, inter alia, granted service connection and assigned an initial 10 percent rating for DJD of the cervical spine, effective April 9, 1990. In October 1991, the Veteran filed a notice of disagreement (NOD) with the initial rating assigned. According to a June 1992 supplemental statement of the case (SSOC), a statement of the case (SOC) was issued in November 1991, although it could not be physically found in the record. Correspondence from the Veteran's representative (VA Form 1-646) dated in May 1992 was accepted as a substantive appeal, in lieu of a VA Form 9 (Appeal to the Board of Veterans' Appeals). In May 2002, the Veteran and his wife at that time testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. After multiple interim RO and Board actions, in November 2013, the only matter on appeal remaining before the Board was the matter of a rating in excess of 30 percent for DJD of the cervical spine, from September 23, 2002. At that time, given evidence suggesting that the cervical spine disability may have been causing interference with the Veteran's employment, the Board bifurcated the issue on appeal into schedular and extra-schedular components, and granted a 40 percent schedular rating for DJD of the cervical spine for the entirety of the appeal period extending from September 23, 2002 forward. The Board then remanded the matter of a higher, extra-schedular rating to the RO, via the Appeals Management Center (AMC), in Washington, DC, for further action. After accomplishing the requested actions, the AMC continued to deny the claim for a higher rating on an extra-schedular basis (as reflected in a December 2013 SSOC), and returned that matter to the Board for further appellate consideration. In September 2014, the Board denied entitlement to a rating in excess of 40 percent for DJD of the cervical spine on an extra-schedular basis pursuant to 38 C.F.R. § 3.321 (b)(1). The Veteran appealed the Board's September 2014 decision to the United States Court of Appeals for Veterans Claims (Court). In May 2015, the Court granted a joint motion for remand filed by representatives for both parties, vacating the Board's decision that denied entitlement to a rating in excess of 40 percent for DJD of the cervical spine on an extra-schedular basis, and remanding that matter to the Board for further proceedings consistent with the joint motion. In August 2015, the Board again denied entitlement to a rating in excess of 40 percent for DJD of the cervical spine on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1). The Veteran appealed the Board's denial to the Court. In June 2017, the Court issued a Memorandum Decision vacating the Board's August 2015 decision, and remanding the claim for a rating in excess of 40 percent for DJD of the cervical spine on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1) to the Board for further proceedings consistent with the Memorandum Decision. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. As a final preliminary matter, the Board notes that, following the issuance of the December 2013 SSOC, the Veteran's representative submitted additional VA treatment records dated from November 2015 to November 2017. Some of these records are pertinent to the claim for a higher rating for the service-connected cervical spine disability on an extra-schedular basis. This evidence has not been considered by the agency of original jurisdiction (AOJ) in conjunction with the matter on appeal. Although the Veteran's substantive appeal was received prior to February 2, 2013, no waiver of initial AOJ consideration of the evidence has been received. See 38 C.F.R. § 20.1304 (2017) and § 501 of the Honoring America's Veterans Act, Public Law No. 112-154, 126 Stat. 1165. However, as the AOJ will have an opportunity to consider such evidence on remand, the Veteran is not prejudiced by the Board's limited consideration of the additionally received evidence for the purpose of issuing a comprehensive remand. For reasons expressed below, the matter on appeal is being remanded to the AOJ. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further AOJ action on the claim for a higher rating for the service-connected cervical spine disability on an extra-schedular basis, prior to appellate consideration, is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A veteran must be afforded a thorough and contemporaneous examination when the record does not adequately reveal the current state of his disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The record is inadequate and the need for a contemporaneous examination occurs when there is evidence (including a veteran's statements) of a possible increase in disability since the last examination. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997)). In this case, the evidence suggests that the Veteran's service-connected cervical spine disability may have worsened since his last VA examination in February 2013. For example, a November 2016 VA operative report, a May 2017 VA occupational therapy initial evaluation note, and a May 2017 VA physical medicine rehabilitation outpatient note reflect that the Veteran underwent a C4-5 anterior cervical discectomy and fusion in November 2016 following reports of worsening left upper extremity weakness and increased difficulty with ambulation, that some of his cervical spine ranges of motion were less than those measured during the February 2013 examination, and that his cervical spine pain was worse. Given this evidence, the Board finds that a new examination to obtain more contemporaneous medical findings is needed to assess the severity of the service-connected cervical spine disability. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Hence, the AOJ should arrange for the Veteran to undergo a VA cervical spine examination by an appropriate physician. The Veteran is hereby notified that failure to report to the scheduled examination without good cause, may well result in denial of his claim. See 38 C.F.R. § 3.655 (b) (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As regards VA records, the claims file includes records of the Veteran's treatment from the VA New York Harbor Health Care System (dated to November 2017). Hence, there may be additional VA treatment records that have not yet been obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the AOJ should obtain from the above-noted facility all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159 (c) as regards requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal (particularly as regards any private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b) (2012); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the matter on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, to particularly include all records from the VA New York Harbor Health Care System dated since November 2017. Follow the procedures set forth in 38 C.F.R. § 3.159 (c) (2017) with respect to requesting records from Federal facilities. All records/responses received should be associated with the file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matter within the one-year period). 3. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the file, arrange for the Veteran to undergo a VA examination, by an appropriate physician, for evaluation of his service-connected cervical spine disability. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should identify all manifestations of service-connected cervical spine disability, as well as comment upon the extent, frequency or severity of such manifestations, as appropriate. The examiner should fully describe the functional effects of the disability upon the Veteran's activities of daily living. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted (to include arranging to obtain any further extra-schedular determination from the appropriate first line authority, if necessary), adjudicate the claim for a higher rating for the service-connected cervical spine disability on an extra-schedular basis in light of all pertinent evidence (to particularly include all that added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s) since the AOJ's last adjudication of the higher rating claim in December 2013), and all legal authority (particularly, 38 C.F.R. § 3.321(b)(1) and Thun v. Peake, 22 Vet. App. 111, 115 (2008)). 7. If the full benefit sought on appeal remains denied, furnish to the Veteran and his representative an SSOC that includes citation to and discussion of the additional legal clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. §§ 5109B, 7112 (2012). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).