Citation Nr: 0003083 Decision Date: 02/08/00 Archive Date: 09/08/00 DOCKET NO. 94-23 894 DATE FEB 08, 2000 On appeal from the Department of Veterans Affairs (VA) Regional Office and Insurance Center (ROIC) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased evaluation for hypertension, currently evaluated as 10 percent disabling. 2. Entitlement to an increased (compensable) evaluation for right ring finger injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran had active military service from July 1967 to May 1970. This matter came before the Board of Veterans' Appeals on appeal from a rating decision of March 1993, by the Philadelphia, Pennsylvania, Regional Office and Insurance Center (ROIC), which denied the veteran's claim of entitlement to increased ratings for hypertension and right ring finger injury; the veteran was notified of this decision by letter dated April 20, 1993. Additional VA treatment reports were received in July 1993. Thereafter, a rating action in August 1993 confirmed the previous denial of an increased rating for hypertension. A notice of disagreement was received in April 1994. A private treatment report was received in April 1994, and a rating action in April 1994 confirmed the denied of an increased rating for right ring finger injury. A statement of the case was issued in May 1994. The substantive appeal was received in June 1994. The veteran appeared and offered testimony at a hearing conducted by a hearing officer at the ROIC in July 1994. A VA compensation examination was conducted in July 1994. Additional medical records were received in August and September 1994. A hearing officer's decision was entered in March 1995, which confirmed the previous denials of increased ratings for hypertension and right ring finger injury. A supplemental statement of the case was issued in March 1995. A VA hospital report was received in August 1995. A supplemental statement of the case was issued in September 1999. The appeal was received at the Board in December 1999. The veteran has been represented throughout his appeal by the Disabled American Veterans, which submitted written argument to the Board in December 1999. - 2 - REMAND The veteran essentially contends that he is entitled to increased ratings for his service-connected hypertension and residuals of a right ring finger injury. The veteran maintains that his service- connected disorders have increased in severity; he indicates that he has increased pain in the right ring finger. At his personal hearing in July 1994, the veteran indicated that he took prescription medication for hypertension twice a day; he noted that he occasionally experienced dizziness in real hot weather, as well as occasional nausea and blurry vision. He reported that he was being followed at the local VA Medical Center (VAMC) on a monthly basis. He also veteran indicated that his right ring finger had been giving him problems ever since he dropped a can of pain on it approximately one year before. The veteran's claims of entitlement to increased evaluations for hypertension and right ring finger injury are well-grounded in that they are not inherently implausible. 38 U.S.C.A. 5107(a) (West 1991 & Supp. 1999); Proscelle v. Derwinski, 2 Vet.App. 629 (1992). Such a finding of well-groundedness generally places upon VA the duty to assist the veteran in the development of the facts pertinent to his claims. 38 C.F.R. 3.159 (1999); see also Littke v. Derwinski, 1 Vet.App. 90 (1990). For the following reasons, additional due process and evidentiary development are warranted prior to further disposition of the veteran's claims. Regarding his claim for hypertension, recent regulatory changes have amended the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1999), including the rating criteria for evaluating cardiovascular diseases. This amendment to the Rating Schedule became effective January 12, 1998, during the pendency of this appeal. See 62 Fed. Reg. 65,207-224 (Dec. 11, 1997). The modified Rating Schedule slightly changed the rating criteria for hypertension under Diagnostic Code 7101. See 62 Fed. Reg. 65,222. All diagnoses of hypertension must be confirmed by readings taken two or more times on at least three different days. Id. It is further - 3 - provided that careful and repeated measurements of blood pressure readings will be required prior to the assignment of any compensable evaluation. See 62 Fed. Reg. 65,215. The United States Court of Appeals for Veterans Claims has held that VA must apply the version of 38 C.F.R. Part 4 which is more favorable to the appellant. Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991); see also Dudnick v. Brown, 10 Vet.App. 79 (1997) (with respect to the amended regulations in question, VA is required to apply the amendments to the extent that they are more favorable to the claimant than the earlier provisions). A review of the medical evidence shows that the most recent VA examination of record which evaluated the veteran's hypertension was conducted in July 1994, where, necessarily, the old (pre- amendment) rating criteria were applied. Therefore, the report of another VA examination conducted pursuant to the new rating criteria would be of significant probative value. The Board observes that a review of the record reveals a VA document showing that the veteran failed to report for VA cardiovascular and orthopedic examinations scheduled in June 1997. However, there is no documentation of record showing that the VAMC sent the veteran notice of the time and place to report for his examinations, nor is there any subsequent communication from the ROIC to the veteran informing him that his claim would continue to be denied if he failed to report for examination. In this regard, the Board notes that, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without good cause, fails to report for such examination, if the examination was scheduled in conjunction with a original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase,, the claim shall be denied. However, where good cause is shown, an examination may be rescheduled. 38 C.F.R. 3.655 (1999). Further, the Board observes that the Court has held that the VA has a duty to fully inform the veteran of the consequences of - 4 - his failure to report for a scheduled examination. See Connolly v. Derwinski, 1 Vet. App. 566 (1991). In a September 1999 supplemental statement of the case (SSOC), the ROIC advised the veteran that he had failed to make himself available for a VA mandated examination. However, the veteran was not advised of the applicability of 38 C.F.R.3.655. The veteran might be prejudiced if the Board were to apply 38 C.F.R. 3.655 in the first instance, without notifying him and his representative of its applicability. See Curry v. Brown, 7 Vet.App. 59 (1994); Bernard v. Brown, 4 Vet.App. 384 (1993). The veteran must be advised of his responsibility to report for the examination and of the possible outcome if he fails, without good cause, to report. Therefore, the Board finds that the veteran should be given another opportunity report for a VA examination. Because current medical findings are needed to properly adjudicate the veteran's increased rating claims, and the last VA examination of the veteran's hypertension and right ring finger was more than five years ago in 1994, the veteran should be scheduled to undergo further cardiovascular, orthopedic, and musculoskeletal examinations. See Snuffer v. Gober, 10 Vet.App. 400, 403 (1997); Caffrey v. Brown 6 Vet.App. 377, 383-4 (1994). As regards the examination of the veteran's musculoskeletal disability, the examiner should include an opinion as to whether the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, and the ROIC should consider these factors in adjudicating that claim. See 38 C.F.R. 4.40, 4.4:5 (1999); DeLuca v. Brown, 8 Vet.App. 202, 204- 7 (1995). While the Board regrets the delay involved in remanding this case, under the circumstances discussed above, it is felt that proceeding with a decision on the merits at this time would not fully comport with due process of law. For that reason, to ensure that VA has met its duty to assist the veteran in developing the facts pertinent to his appeal, the case is REMANDED to the ROIC for the following development: 5 - 1. The ROIC should contact the veteran and ask him to provide the names and addresses of all healthcare providers from whom he has recently received treatment for his service-connected hypertension and right ring finger injury. After securing the necessary release(s), the ROIC should obtain legible copies of any records not already contained in the claims folder, to include those from any VA medical facility. The ROIC should also obtain copies of the veterans treatment records from the VA Medical Center in Philadelphia, PA, dated from July 1994 to the present time. The veteran is hereby notified that, if he fails to provide this information, it could have an adverse effect on the ultimate outcome of his claim. Once obtained, all records must be associated with the claims folder. 2. The veteran should be scheduled for a VA examination to determine the current nature and severity of his service-connected hypertension. The veteran and his representative should be notified of the date, time and place of the examination in writing, and a copy of the notification letter should be associated with the claims file. As above, the veteran is hereby specifically informed of the consequences of failure to report as set forth in 38 C.F.R. 3.655. The claimsfolder and a copy of this REMAND must be made available to the examiner and reviewed in conjunction with the examination. The ROIC should also provide to the examiner a copy of the old and new rating criteria of Diagnostic Code 7101. All indicated tests and studies should be accomplished. The examiner's report should provide discussion of all current complaints, clinical findings and diagnoses referable to the service-connected hypertension in terms of both the old and new rating criteria. 3. The ROIC should also afford the veteran VA orthopedic and neurological examinations to determine the nature and degree of severity of his right ring finger injury. The veteran and his representative should be notified of the date, time and place of the examination in writing, and a copy of the notification letter should be associated with the claims file. As above, the veteran is hereby specifically informed of the consequences of failure to report as set forth in 38 C.F.R. 3.655. The claimsfolder and a copy of this REMAND must be made available to the examiner and reviewed in conjunction with the examination. All indicated tests, including, but not limited to, X-ray studies and range of motion studies, must be conducted. Detailed clinical findings should also be reported and all manifestations attributable to the service-connected disability should be identified. The examiner should express opinions for the record on the following: a. What is the range of motion in the veteran's right ring finger? The examiner should note on the examination report what is considered the normal range of motion for the joints of this finger. b. Does the veteran's right ring finger exhibit weakened movement, excess fatigability, or incoordination attributable to any service- connected disability? If feasible, these determinations should be expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. c. Does pain on motion of the veteran's right ring finger limit functional ability during flare-ups or when these joints are used repeatedly over a period of time? This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. d. To what degree does the veteran's service-connected right ring finger disability have an effect on his social - 7 - and industrial capacity? The degree of any social and industrial impairment should be specified. A complete rationale for any opinion expressed must be provided. 4. Subsequently, the ROIC should review the claims folder and ensure that all of the foregoing development actions have been completed. If any development is incomplete, appropriate corrective action should be taken. Specific attention is directed to the examination reports. If the examination reports do not include fully detailed descriptions of all test reports, special studies or opinions requested, the reports must be returned for corrective action. 38 C.F.R. 4.2 (1999); see also Stegall v. West, 11 Vet.App. 268 (1998). 5. After completion of the above evidentiary development, the ROIC should readjudicate the veteran's claims. Regarding his claim for an increased disability rating for hypertension, the ROIC should consider whether either the new or the old version of the rating criteria for cardiovascular disorders is more favorable to his claim and apply the one more favorable. If the result is the same under either set of criteria, the ROIC should apply the revised criteria, per Karnas and Dudnick, supra. In considering the claim for an increased rating for the right ring finger injury, the ROIC should reflect consideration of 38 C.F.R. 4.40, 4.45, and 4.59 and the Court's holding in DeLuca v. Brown, 8 Vet.App. 202, 204-7 (1995). 6. If any benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case, which summarizes the pertinent evidence, all applicable law and regulations, including a copy of the changes to the cardiovascular disorders section of the rating schedule, effective January 12, 1998. If the veteran has failed to report for an examination, citation and discussion of 38 C.F.R. 3.655 must be provided. The SSOC should also reflect detailed reasons and bases for the decisions reached. The veteran and his representative should be afforded a reasonable period of time in which to respond. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the veteran until he receives further notice. By this REMAND the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. The purposes of this REMAND are to further develop the record and to accord the veteran due process of law. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet.App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or the United States Court of Appeals for Veterans Claims 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. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs 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. ANDREW J. MULLEN Member, Board of Veterans' Appeals Under 38 U.S.C.A. 7252 (West 1991 & Supp. 1999), only a final 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 final decision of the Board on the merits of your appeal. 38 C.F.R. 20.1100(b) (1999).