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04-21-2013, 05:03 AM #1
- Join Date
- Apr 2013
Entitlement to an initial compensable rating for a right ulnar nerve disability.
Citation Nr: 1225202
Decision Date: 07/20/12 Archive Date: 07/30/12
DOCKET NO. 09-07 751 ) DATE )
On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia
1. Entitlement to an initial compensable rating for a right ulnar nerve disability.
2. Entitlement to service connection for a right knee disorder.
3. Entitlement to a total disability rating based on individual unemployability (TDIU).
Appellant represented by:
Disabled American Veterans
ATTORNEY FOR THE BOARD
Donna D. Ebaugh, Associate Counsel
The Veteran served on active duty from August 1986 to December 1986 and from February 2003 to September 2004. The Veteran also served during periods of active duty for training (ACDUTRA) as well as inactive duty for training (INACDUTRA).
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the RO in Atlanta, Georgia.
The Veteran asserts that he is unemployable due, in part, to his service-connected right ulnar nerve neuropathy. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for unemployability because of the severity of service-connected disability, is part of a higher rating claim once such claim is raised by the record. TDIU was denied in a May 2008 rating decision. Although the Veteran did not initiate an appeal of that decision, under Rice, the claim for a TDIU is nevertheless before the Board as part of the Veteran's claim for a higher rating. As such, the issue of entitlement to TDIU is included on the title page.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.
The Veteran seeks a higher initial rating for his service-connected right ulnar nerve disability. In a December 2009 Statement of Accredited Representative, the Veteran, through his representative, specifically alleged that his right ulnar nerve neuropathy had worsened. The Board has reviewed VA treatment records, dated from May 2010 to December 2011, that are available via Virtual VA. Nearly all of these records pertain to treatment for ulnar nerve neuropathy (and cervical radiculopathy) and related complaints of weakness, numbness, decreased grip, and decreased sensation in the right arm and hand. In a June 2010 note, a VA physician stated that these symptoms had worsened in last six months and the Veteran had confirmed neurological deficit of the upper extremity on physical examination. The Board notes that the last examination was in April 2008, over four years ago. In light of the state of the record, the Board finds that the claim should be remanded for an examination to assess the current degree of disability of this disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).
In August 2009, the Veteran indicated that additional treatment was received from the Tallahassee, Lake City, and Gainesville VA Medical Centers (VAMCs). The most recent VA treatment records in the claims file are current only as of February 2008. As there potentially are outstanding VA medical records relevant to the appeal, there is a duty to obtain such records. See 38 C.F.R. Â Section. 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Also as noted, there are additional VA treatment records associated with the Veteran's Virtual VA paperless file. These records, which are dated from May 2010 to December 2011, show treatment for ulnar nerve neuropathy and right upper extremity neurological impairment, and thus are pertinent to the appeal. These records were not considered by the RO in the most recent adjudication of the Veteran's claim in the January 2009 Statement of the Case (SOC). As the Veteran has not submitted a waiver of RO review, remand is necessary. 38 C.F.R. Â Section.Â Section. 19.37(b), 20.1304 (c) (2011).
The Veteran also seeks service connection for a right knee disability. He reports having difficulty since sustaining trauma to both of his knees during a motor vehicle accident in service. At a VA examination in April 2007, no clinical pathology was noted, other than limitation of motion and pain. Since that examination, VA treatment records reflect complaints of pain, popping, locking, and give-way. For instance, an April 2008 treatment note reflects a complaint of right knee aching, popping and locking. Another April 2008 treatment note indicates that the Veteran had a meniscal injury to his right knee. A comment to the April 2008 note indicated that film review was planned, but it was not clear if this was done; presumably arthroscopy was still being considered. Thus, while the Veteran was previously afforded a VA examination, given the state of the record and the Veteran's competent and credible statements (and as the claim is being remanded for other development), the Board finds that another VA examination is necessary to adjudicate this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).
As noted in the introduction, the issue of entitlement to a TDIU is part of the Veteran's higher rating claim. See Rice. Here, the pending claim for a higher initial rating for service-connected ulnar nerve neuropathy is inextricably intertwined with his TDIU claim. Further, the Board is remanding the issue of entitlement to service connection for a right knee disability in this decision. This pending claim for service connection may also impact his TDIU claim, particularly as he has specifically contended that employment is precluded due, at least in part, to his right knee problem. As such, these issues are inextricably intertwined and must be considered together and a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998).
Accordingly, the case is REMANDED for the following action:
1. Contact the Veteran to identify all sources of treatment for his claimed right knee disability and his service-connected right ulnar nerve neuropathy. Thereafter, the RO should request that the Veteran provide, or authorize VA to obtain, these records. Obtain relevant copies of VA treatment records dated from December 2011 to the present and associate these records with the claims file.
2. Notify the Veteran that he may submit lay statements from himself as well as from individuals who have first-hand knowledge of his right ulnar nerve symptoms and of his right knee symptoms since service. He should be provided an appropriate amount of time to submit this lay evidence.
3. After any additional evidence has been obtained, the RO should make arrangements with an appropriate VA medical facility for a VA examination to ascertain the nature and etiology of the Veteran's claimed right knee disability. The claims folder must be made available to the examiner. The examiner should note in the examination report that the claims folder has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary should be conducted and included in the examination report.
The examiner is requested to diagnose any right knee disability found to be present. The examiner should also opine as to whether it is at least as likely as not that the Veteran has a right knee disability that is related to or had its onset in service. In doing so, the examiner must acknowledge and discuss the Veteran's competent and credible lay testimony regarding the onset of his right knee problems due to in-service trauma as well as his competent report of continuity of right knee symptomatology since service.
4. After any additional treatment records have been obtained, the RO should make arrangements with an appropriate VA medical facility for a VA examination to determine the current nature, extent and severity of his service-connected right ulnar nerve neuropathy. The claims folder should be made available to and reviewed by the examiner. All indicated tests and studies should be performed.
The examiner must describe all neurological impairment associated with the Veteran's right ulnar nerve neuropathy. The information provided must be sufficient to determine whether the level of disability is severe, moderate, or mild.
The examiner should also evaluate and discuss the effect of this disability on the Veteran's employability, as well as the aggregate impact of all of his service-connected disabilities (to include the aggregate impact of the right knee disability, if service connection is awarded for that condition). In doing so, opine as to whether it is at least as likely as not that his service-connected disabilities, without consideration of his nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation.
5. Then readjudicate the appeal, to include entitlement to TDIU. If any benefit sought on appeal is not granted, the Veteran must be provided with a Supplemental Statement of the Case (SSOC). An appropriate period of time should then be allowed for a response, before the record is returned to the Board.
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. Â Section.Â Section. 5109B, 7112 (West Supp. 2011).
D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. Â Section. 7252 (West 2002), 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. Â Section. 20.1100(b) (2011).