Citation Nr: 1808335 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 10-02 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased disability rating for degenerative disc disease of the cervical spine, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Nye, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1984 to July 2006. This matter comes to the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction over the case was later transferred to the RO in Roanoke, Virginia. The Board denied the claim in July 2015, and the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In April 2016, the Court granted a Joint Motion for Remand (JMR), in which both parties agreed to vacate the Board's July 2015 denial of a rating higher than 10 percent for a cervical spine disability and to remand that issue to the Board for further proceedings. According to the JMR, the Board erred in relying on an inadequate VA medical examination report. By granting the parties' JMR, the Court returned this case to the Board. To remedy the stated weaknesses in the previous VA examination report, the Board then remanded this appeal to the Agency of Original Jurisdiction (AOJ), with instructions to request certain medical records and to arrange a new medical examination. Although the Board regrets the need for further delay, the appeal is REMANDED to the AOJ for the following reasons. VA will notify the appellant if further action is required. REMAND Shortly after the Court granted the parties' JMR, the Veteran completed a change-of-address form and submitted it to VA. The form indicates that the Veteran had left her previous residence in Virginia - indeed, that she had left the United States; and informed VA that she now lived in Greece. Nevertheless, when the Board remanded this appeal with instructions to schedule a new VA examination, the AOJ scheduled the examination to take place at a VA Medical Center in Virginia. The AOJ also wrote to the Veteran at her new address, asking her to identify health care providers who possessed potentially relevant records. For each non-VA provider she identified, the letter asked the Veteran to complete a written authorization for the AOJ to obtain that provider's records. On remand, the Veteran filed multiple written statements, in which she identified a Greek chiropractor and physical therapist. She also completed a written authorization for the Greek chiropractor to provide confidential information to VA. The AOJ did not, however, send the Greek chiropractor a request for records, identifying the following reason for the failure to do so: "Foreign provider listed" In May 2017, the AOJ wrote a letter to the Veteran, explaining that she had failed to follow certain instructions to schedule the requested VA examination in Virginia and asked for her to complete a new form if she wanted to reschedule that examination. According to a subsequent record, an employee of the AOJ spoke to the Veteran by telephone, who indicated that, because she lived in Greece, she was unable to attend a new examination. Based in part on the Veteran's failure to appear for a VA examination in Virginia, the AOJ issued a supplemental statement of the case in November 2017, denying a disability rating higher than 10 percent for service-connected degenerative disc disease of the cervical spine. VA may only cease its efforts to obtain potentially relevant records if it has concluded that the records sought do not exist or that further attempts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2) (2017). Although it is possible that, because of their location abroad, the records of the Veteran's Greek chiropractor will be more difficult to obtain then other records, the AOJ must make reasonable attempts to obtain them. If the requested records do not exist or the AOJ is unable to obtain them, then the AOJ must create a written record explaining those circumstances. The Veteran's May 2017 written statement suggests that her Greek chiropractor does not keep "traditional 'medical records'" but it is not clear from this statement that no records exist. Under these circumstances, the Board must remand this appeal for the AOJ to request potentially relevant outstanding records from the Veteran's Greek chiropractor and from any other health care provider identified by the Veteran. She identified three Virginia health care providers in May 2017. Although the file includes some records from at least two of them, it is unclear whether those records are complete. The Veteran's residence abroad effectively prevents the AOJ from strictly complying with the Board's October 2016 order to obtain a new VA examination of her cervical spine. But it may still be possible to satisfy the fundamental concerns which led the Board to request an examination. On remand, the AOJ should send the Veteran a copy of the latest disability benefits questionnaire (DBQ) for cervical spine disabilities and request that she should bring the questionnaire to a qualified medical professional who is conveniently located and who has recently examined her cervical spine. In this way, the Veteran may at least enjoy the benefit of providing to VA much of the information which would otherwise be provided in a standard VA examination report. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be asked to identify all health care providers who have relevant records pertaining to her service-connected cervical spine disability. The AOJ should attempt to verify the completeness of the records from the Virginia physicians identified in the Veteran's May 2017 written statement. If the AOJ has not received the Veteran's complete records from any of the identified providers, the Veteran should be asked to authorize a new records request. The AOJ should request any records the Veteran authorizes VA to obtain. Whether or not the Veteran provides new information in response to the AOJ's post-remand request to identify relevant medical information, the AOJ should request records from the Greek chiropractor and physical therapist which the Veteran has previously identified. If any records request is unsuccessful, the AOJ should describe in writing the efforts made to obtain the records and explain why any further efforts to obtain them would be futile. If any records request is unsuccessful, the AOJ should send the Veteran a letter notifying her of the results of the request. 2. Verify the Veteran's current address. If she has returned to the United States by the time this appeal returns to the AOJ, then the AOJ should schedule an appropriate VA examination to assess the current severity of her service-connected cervical spine disability at the VA medical facility which is most convenient for her. If she remains in Greece, or is otherwise still outside the United States, the AOJ should send the Veteran a letter together with a copy of the most current VA disability benefits questionnaire (DBQ) for disabilities of the cervical spine. The letter should explain to the Veteran that, as long as she remains outside the United States, the previously ordered VA examination is not feasible. She should be informed, however, that the enclosed DBQ, if completed by a qualified medical professional who has examined her cervical spine, can provide VA with much of the same information which would be discovered during a standard VA examination. The Veteran should be advised to mail the completed DBQ back to the AOJ together with information identifying the person who completed the DBQ and that person's qualifications. The DBQ provided to the Veteran should ask the examiner to express an opinion as to whether there would be additional limits on functional ability on repeated use or during "flare-ups" or periods of time when the Veteran's symptoms are at their worst (if the Veteran describes flare-ups) and, to the extent possible, provide an assessment of functional impairment after repeated use over time. The DBQ should ask the examiner, if feasible, to assess the additional functional impairment on repeated use over time or during flare-ups in terms of the degree of additional range of motion loss. The DBQ should also ask for information describing the frequency and duration of flare-ups. In addition to all the findings identified on the appropriate DBQ, the DBQ mailed to the Veteran should seek information concerning the effective range of motion in the Veteran's cervical spine and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and nonweight-bearing. The DBQ should request the person completing it to indicate the presence objective evidence of painful motion, if any, during each test. 3. After the above development has been completed, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, furnish the appellant and her representative a supplemental statement of the case and return the case to the Board. The appellant 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). _________________________________________________ DAVID L. WIGHT 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).