Citation Nr: 0001943 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 95-03 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased evaluation for right knee disability, currently evaluated as 20 percent disabling. 2. Entitlement to an increased evaluation for a left knee disability, currently evaluated as 20 percent disabling. 3. Entitlement to an increased evaluation for lumbosacral strain with myalgia and degenerative changes, currently evaluated as 40 percent disabling. 4. Entitlement to an increased (compensable) evaluation for bilateral tinea infection. 5. Whether new and material evidence has been submitted to reopen a claim for service connection for a heart disorder. (The issues of entitlement to automobile and adaptive equipment or adaptive equipment only and specially adapted housing or a special home adaptation grant are the subject of a separate decision of the Board.) REPRESENTATION Appellant represented by: Michael E. Wildhaber, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran served on active duty from May 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO), which denied the veteran's claims of entitlement to evaluations in excess of 10 percent for his right and left knee disabilities as well as to a compensable evaluation for his bilateral tinea infection (skin disability). In that same rating action, the RO increased the rating for the veteran's service-connected lumbosacral strain with limitation of motion to 20 percent, effective January 20, 1994, and denied his application to reopen a claim for service connection for a heart disability. The veteran timely appealed these determinations to the Board. During the pendency of the veteran's appeal, in an April 1995 rating action, the RO recharacterized the veteran's service- connected low back disability as lumbosacral strain with myalgia and degenerative changes (low back disability) and established entitlement to a 40 percent evaluation, effective January 20, 1994. Thereafter, in a September 1997 decision, the Board established entitlement to 20 percent ratings for both his right and left knee disabilities; denied entitlement to increased ratings for his service-connected low back and skin disabilities; and denied his petition to reopen a claim for service connection for a heart disability. In a September 1997 rating action, the RO assigned January 20, 1994, as the effective date of the 20 percent evaluations for the veteran's right and left knee disabilities. The veteran appealed each of the Board's determinations to United States Court of Veterans Appeals (now known as United States Court of Appeals for Veterans Claims) (Court). In a February 1999 order, the Court granted a joint motion for remand, vacated the Board's decision as to these claims, and remanded the case for compliance with the terms of the joint motion. In March 1997, the veteran appeared before the undersigned Board Member at a hearing held in Washington, DC. During the hearing, the veteran testified that he was entitled to service connection for arthritis of the neck, shoulders and upper back. However, as this claim has not been adjudicated, it is referred to the RO for any and all appropriate action. REMAND The joint motion directed that each of the veteran's increased rating claims be vacated because, despite being notified of their existence, VA has not secured and considered records from the Social Security Administration (SSA) pertaining to the veteran. Hence, the RO must obtain and associate such records with the claims file for consideration, in the first instance, in each increased rating claim. In addition, the claims folder reflects that the veteran has been receiving both VA and private medical care for the service-connected disabilities for which increased rating are sought-from the Oklahoma City, VA Medical Center, and from Dr. James A. Dixson of Mercy Health, in Guthrie, Oklahoma. On remand, the RO must obtain and associate with the claims folder any outstanding records of the veteran's treatment for these disabilities. See 38 U.S.C.A. § 5107(a) (West 1991); Massey v. Brown, 7 Vet. App. 204, 208 (1994); Littke v. Derwinski, 1 Vet. App. 90 (1990). Further, after all outstanding medical records are associated with the claims file, the veteran should undergo contemporaneous and thorough medical evaluations for each of the disabilities under consideration which take into account the records of the veteran's prior medical history, and especially the medical evidence discussed above. See Fenderson v. West, 12 Vet. App. 119, 127 (1999); Goss v. Brown, 9 Vet. App. 109, 114 (1996). In the report of the VA orthopedic examination of the veteran's knees and back, the examiner should indicate whether the veteran has arthritis and/or instability of either knee as well as provide an opinion as to whether the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination of his knees and/or low back, and the RO should consider these factors in adjudicating these claims. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Further, with respect to his claims for increased ratings for his left and right knee disabilities, the Board observes that VA outpatient treatment records, as well as the reports of VA examinations conducted in March and October 1995 and in March 1996, reflect that the veteran has been diagnosed as having arthritis in his knees. The veteran's right and left knee disabilities are each currently evaluated as 20 percent disabling under Diagnostic Code 5257. As such, on remand, the RO should consider whether separate evaluations for arthritis and instability are warranted. See VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56703 (1998); VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63604 (1997). With respect to the veteran's application to reopen his claim for service connection for a heart disability, the joint motion indicated that this claim had to be readjudicated in light of the decision of the United States Court of Appeals for the Federal Circuit in Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998). To avoid prejudice to the veteran, the Board finds that the RO should address the application of Hodge in the first instance, and to consider the claim in light of records associated with the claims file in connection with the remand. The joint motion also indicates that the veteran "reasonably raised" a claim of entitlement to a total disability rating for pension purposes as early as April 1994, and that he submitted statements that could reasonably be construed as constituting a Notice of Disagreement (NOD) with VA's failure to adjudicate this claim. As such, on remand, the Board was directed to consider the veteran's entitlement to nonservice- connected pension benefits. However, a review of the claims folder discloses that the RO has, in fact, adjudicated the veteran's claim of entitlement to nonservice-connected pension benefits. Although, in a November 1995 rating action, the RO denied this claim, the RO subsequently granted entitlement to nonservice-connected pension benefits in a May 1996 rating action, effective August 14, 1995. Moreover, in an April 1998 rating decision, the RO granted entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, effective January 13, 1998; the effective date subsequently was made retroactive to March 28, 1994. Governing regulations provide that, where a veteran is entitled to both compensation and pension, only the greater benefit will be awarded, i.e., in this case compensation, unless the veteran specifically elects the lesser benefit. See 38 C.F.R. § 3.151(a). There is no indication that the veteran has done so in this case. (1999). Thus, the veteran has been awarded both a total rating for pension purposes, and a total rating for compensation purposes, and he currently is in receipt of compensation, a greater benefit, from a date earlier than the purported claim for pension benefits identified in the joint motion. See 38 C.F.R. § 3.400 (1999) Accordingly, as the Board is unable to find any additional pension benefit that can accrue to the veteran on the basis of the above, there is no basis for consideration of a nonservice-connected pension claim, and that claim is moot. Thus, to remand this case, pursuant to the Court's holding in Stegall v. West, 11 Vet. App. 268 (1998), is not warranted. See Evans v. West, 12 Vet. App. 22, 30-31 (1998). The Board would point out, however, that in an undated statement, apparently received in October 1998, the veteran asserted that the effective date for the award of total rating benefits should be July 23, 1993. Thereafter, in a February 1999 statement that was received at the RO the following month, the veteran asserted that he initially filed a claim for a total rating due to individual unemployablity in June 1993, and thus the award should be effective retroactive to that time. Moreover, in an April 1999 statement, the veteran reiterated his contention that he initially filed a claim for a total rating for individual unemployability in June 1993. The Board finds that the statement filed by the veteran in February 1999 constitutes an NOD with respect to the effective date to the date assigned in the April 1998 rating action for the grant of these benefits. Although the RO, to date, does not appear to have issued the veteran a Statement of the Case (SOC) with respect to this issue, in an April 1999 rating decision, it concluded that its earlier assignment of the January 13, 1998, effective date was clearly and unmistakably erroneous, and granted entitlement to these benefits retroactive to March 28, 1994. However, as the veteran has filed an NOD and the subsequent grant does not constitute a complete grant of the benefit sought, see Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35, 38 (1993), the Board must remand this claim to the RO for the issuance of that SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v Gober, 10 Vet. App. 433, 436 (1997). Finally, the Board observes that, during the March 1997 hearing, the veteran asserted that the RO committed clear and unmistakable error (CUE) in its December 1968 rating decision when it denied his claim of entitlement to service connection for a heart disorder. The record reveals that the RO adjudicated that issue in April 1996. Apparently, the veteran initially disputed that denial in his May 1996 telephone call to the RO. That conversation was memoralized in a VA Form 119, Report of Contact, also dated in May 1996, which also reflects that the person to whom the veteran spoke indicated that he "would check it out." Subsequently, in a written statement received at the RO in September 1996, the veteran appears to reiterate his disagreement with the denial of his CUE claim. The Board finds that, liberally construed, the September 1996 statement constitutes an NOD as to the denial ; however, none of his statements, written or otherwise, were construed by the RO as an NOD with the April 1996 denial, and no further action was taken with regard to his May 1996 telephone call. Because the RO had not taken any action in response to the veteran's multiple indications of disagreement with the CUE denial, the Board explained that the matter was not properly before the Board; it was referred to the RO for any and all necessary action, including the issuance of an SOC on that issue. A review of the claims folder discloses, however, that, to date, no action has been taken with respect to this claim. In light of in light of changes in the interpretation of the governing law by the Court subsequent to the September 1997 decision, the Board must now remand this claim to the RO for the issuance of that SOC. See Manlincon; Holland. Finally, in an undated VA Form 9, which was filed at the RO in May 1999, the veteran indicated that he wished to appear at a hearing conducted before a Member of the Board at the local VA office. Although he had on three occasions previously requested such a hearing in connection his appeal of the issues contained in the Board's concurrently issued decision, in that statement he specifically referenced bilateral leg and chronic heart disabilities. As such, it is unclear to the Board whether the veteran also wishes to offer testimony at a Travel Board hearing with respect to these claims. On remand, the RO should have the veteran clarify this matter and thereafter take appropriate action. Accordingly, the Board hereby REMANDS the case to the RO for the following actions: 1. The RO should contact the veteran and have him clarify whether, at the hearing before a traveling Member of the Board at the RO concerning the claims that are the subject of a separately, concurrently issued decision of the Board, he also wishes to offer testimony in support of the issues listed on the title page of this decision. If the veteran responds that he wishes to testify in support of any of the claims listed on the title page of this decision, the RO should respond accordingly. 2. The RO should issue the veteran a Statement of the Case with respect to his claims regarding: (1) an effective date, prior to March 28, 1994, for a grant of total disability rating based on individual unemployability due to service-connected disabilities benefits; and (2) that the RO's December 1968 rating action, which denied his claim for service connection for a heart disorder, was clearly and unmistakably erroneous. In doing so, the RO must specifically notify the veteran of the need to timely file substantive appeals to perfect his appeals on these issues. 3. The RO should obtain from the Social Security Administration any decision concerning an award of SSA disability benefits to the veteran, and all supporting medical documents considered in making the award. 4. The RO should obtain and associate with the claims file all outstanding records of treatment relating to the veteran. This should specifically include any outstanding records from the Oklahoma City, VA Medical Center, and from Dr. James A. Dixson, or any other examiner at Mercy Health, in Guthrie, Oklahoma, as well as from any other facility or source identified by the veteran. The aid of the veteran and his representative in securing such records, to include providing necessary authorizations, should be enlisted, as needed. However, if any such records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 5. After completion of the actions requested above, the RO should arrange for the veteran to undergo a VA orthopedic examination to determine the current nature and extent of his service- connected right knee, left knee and low back disabilities. It is imperative that the physician who is designated to examine the veteran reviews the evidence in his claims folder, including a complete copy of this REMAND. All appropriate tests and studies, including X-rays and range of motion studies, should be conducted, and all clinical findings should reported in detail. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the right and left knees and low back. In addition, the physician should indicate whether, and to what extent, the veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups. To the extent possible, the examiner should express such functional loss in terms of additional degrees of limited motion. In the report, the physician should indicate whether the veteran has arthritis and instability in his knees. If the examiner is unable to provide any of the requested information with any degree of medical certainty, the examiner should clearly so state. All examination findings, along with the complete rationale for all opinions expressed and conclusions reached should be set forth in a typewritten report. 6. After completion of the actions requested above, the RO should also arrange for the veteran to undergo a VA dermatological examination to determine the current severity of service-connected bilateral tinea infection. It is imperative that the physician who is designated to examine the veteran reviews the evidence in his claims folder, including a complete copy of this REMAND. All necessary tests and clinical studies should be accomplished, and all clinical findings should be reported in detail. The examiner should describe any exfoliation, exudation, ulceration, crusting or objective evidence of itching due to the skin disability. All examination findings, along with the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record, should be set forth in a typewritten report. 7. To help avoid future remand, the RO should ensure that all requested development has been completed (to the extent possible) in compliance with the joint motion and 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 (1998). 8. After completion of the foregoing requested development, and after completion of any other development deemed warranted by the record, the RO should readjudicate the veteran's claims for increased ratings for his right knee, left knee, low back and skin disabilities on the basis of all pertinent evidence of record and legal authority, specifically to include that cited to above. In addition, when considering the veteran's claims for increased ratings for his right and left knee disabilities, the RO adjudicate whether separate evaluations for arthritis and instability are warranted (consistent with VAOPGCPREC 23- 97 (1997), and VAOPGCPREC 9-98 (1998)). The RO should also consider the veteran's application to reopen his claim for service connection for a heart disorder on the basis of all pertinent evidence of record, and in light and all applicable laws, regulations, and case law, specifically to include the decision of the United States Court of Appeals for the Federal Circuit in Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998). The RO should provide adequate reasons and bases for its decision, citing to all governing legal authority and precedent, and addressing all issues and concerns that are noted in this REMAND. 9. If any benefits requested by the veteran continue to be denied, he and his attorney must be furnished a supplemental statement of the case and given an opportunity to submit written or other argument in response thereto before his case is returned to the Board for further appellate consideration. The veteran and his attorney are hereby reminded that Board review of any issue not currently in appellate status (to include the claims for an effective date prior to March 28, 1994, award of a total disability rating based on individual unemployability due to service-connected disability, as well as that the December 1968 RO rating action that denied his claim for service connection for a heart disorder was clearly and unmistakably erroneous) may be obtained only if a timely notice of disagreement and, after issuance of a statement of the case, a timely substantive appeal, are filed. The purpose of this REMAND is to accomplish additional development and adjudication and to ensure that all due process requirements are met, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence within the appropriate time period. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment by the RO. 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 (known as the United States Court of Veterans Appeals prior to March 1, 1999) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the RO to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. JACQUELINE E. MONROE Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).