Citation Nr: 1808196 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-05 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 20 percent disabling for residuals, post-operative fusion cervical ribs, thoracic outlet syndrome, right upper extremity. 2. Entitlement to a rating in excess of 20 percent disabling for residuals, post-operative fusion cervical ribs, thoracic outlet syndrome, left upper extremity. 3. Entitlement to an initial disability rating in excess of 20 percent disabling for cervical spine disability. 4. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Ronald C. Sykstus, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1974 to September 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from May 2010 and June 2013 rating decisions of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in November 2013 as to the increased rating issues concerning his service-connected bilateral upper extremity disabilities. The Veteran also testified at a Board hearing in August 2017 as to the increased rating issues concerning his service-connected bilateral upper extremity disabilities and his cervical spine disability. A copy of the transcript of both hearings has been associated with the claims file. In an October 2017 letter, the Board notified the Veteran that the Veterans Law Judge who conducted his August 2017 hearing was no longer employed at the Board. Accordingly, the Veteran was advised of his right to another optional Board hearing. In October 2017, the Veteran notified the Board that he did not wish to appear at another Board hearing. In April 2014, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain a new VA examination. The Board notes that the requested VA examination was obtained in July 2014 and has been associated with the claims file. Accordingly, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). As noted in the April 2014 Board remand, the issue of entitlement to a TDIU was raised by the record. That issue was addressed in the August 2014 supplemental statement of the case and remains on appeal. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board regrets the delay, however a remand is necessary and further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A, and to afford the Veteran VA examinations. Barr v. Nicholson, 21 Vet. App. 303 (2007). Initially, the Board notes that during an August 2017 Board hearing, the Veteran's attorney noted that with regard to the cervical spine increased rating issue on appeal, the medical evidence of record was outdated as the most recent VA examination was conducted in September 2011. Additionally, with regard to all increased rating issues on appeal, both the Veteran and his representative assert that the conditions worsened since the previous VA examinations. With regard to the cervical spine disability, the Board notes that the September 2011 VA examination report shows the examiner found functional loss and/or functional impairment due to less movement than normal and pain on movement. Additionally, no localized tenderness or pain to palpation was found and the Veteran did not report flare-ups. However, during the August 2017 Board hearing, the Veteran testified that he was in constant pain due to his service-connected cervical spine disability and his current pain level was rated an 8 or 9 on a scale to 10. The Veteran also testified that he stopped taking medications prescribed to treat his cervical spine disability because they no longer helped in treating his condition. With regard to the bilateral upper extremity claims on appeal, the July 2014 VA examination report shows that a sensory examination found decreased inner/outer forearm sensation for light touch and all other sensory testing was normal. However, during the August 2017 Board hearing, the Veteran testified that his bilateral upper extremity disabilities had worsened such that he had no feeling. In addition, he asserted that he could not tell when he cut himself and that at times people had to tell him he was bleeding. For example, the Veteran stated that he recently had to work on his truck to get it started and in doing so he scratched himself and started bleeding without even knowing it happened. VA's duty to assist a claimant includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d)(1) (2012); 38 C.F.R. § 3.159(c)(4) (2017). The medical examination provided must be thorough and contemporaneous and consider prior medical examination and treatment. Green v. Derwinski, 1 Vet. App. 121 (1991). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr, 21 Vet. App. at 312. In addition, evidence of a change in the condition or allegation of worsening of the condition renders an examination inadequate for rating purposes. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); see also Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Board notes the Veteran is competent to testify to such lay observable symptomatology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the Veteran's testimony that his cervical spine and bilateral upper extremity disabilities worsened since the previous VA examinations, a remand is warranted for new VA examinations. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Lastly, entitlement to a TDIU is inextricably intertwined with the Veteran's increased rating claims on appeal. Accordingly, the case is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and severity of his service-connected bilateral upper extremity residuals, post-operative fusion cervical ribs, and thoracic outlet syndrome disability. The examiner should review pertinent documents in the Veteran's claims file and this Remand in connection with the examination. All indicated studies should be completed, and all pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. 3. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and severity of his service-connected cervical spine disability and associated upper extremity neurological disorders. The examiner should review pertinent documents in the Veteran's claims file and this Remand in connection with the examination. All indicated studies should be completed, and all pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner should conduct range of motion studies and assess any functional impairment due to such factors as pain and weakness, and express this functional impairment in terms of further loss of motion. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 4. Then, readjudicate the claims remaining on appeal, including the claim for a TDIU. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then return the case to the Board, if otherwise in order. 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. §§ 5109B, 7112 (2012). _________________________________________________ J.W. FRANCIS 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 your appeal. 38 C.F.R. § 20.1100(b) (2017).