Citation Nr: 0001148 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 99-02 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased evaluation for ulnar nerve neuropathy of the right upper extremity, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Jennifer Lane, Counsel INTRODUCTION The veteran had active service from May 1943 to June 1944. The current appeal originated with a rating decision dated in September 1998 in which the Regional Office (RO) denied an increased evaluation for ulnar nerve neuropathy of the right arm. The veteran subsequently perfected an appeal of that decision; and a hearing was held at the RO in September 1999 before the undersigned, a member of the Board of Veterans' Appeals (Board). REMAND The Board notes that the RO assigned the current 30 percent rating for the veteran's service-connected ulnar nerve neuropathy of the right upper extremity under the provisions of Diagnostic Code 8516 of the Department of Veterans Affairs (VA) Schedule of Rating Disabilities. 38 C.F.R. Part 4 (1999). Under that Diagnostic Code, an evaluation higher than 30 percent is available. A 40 percent evaluation is warranted for severe incomplete paralysis and a 60 percent evaluation is warranted for complete paralysis. At the Board hearing in September 1999, the veteran testified that he had received VA medical treatment for the disability at issue five months prior to the hearing and that such disability had become worse since he last sought treatment. Review of the claims file discloses that the RO last requested VA medical records pertaining to the veteran in 1997. Thus, the RO should request more recent VA treatment records prior to the Board issuing a final decision on this matter. Additionally, as the veteran contends that his service-connected ulnar nerve neuropathy of the right upper extremity is worse since the last VA examination of that disability in September 1997 and there are higher disability ratings available for such disability, he should be afforded another VA examination. Review of the evidence of record also discloses that the veteran has been awarded benefits from the Social Security Administration, although it is unclear for what disability such benefits were awarded. In order to ensure that all potentially relevant evidence is obtained, the RO should request copies of all records associated with the veteran's claim for benefits from the Social Security Administration. 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 withstand scrutiny by the U.S. Court of Appeals for Veterans Claims (Court) (known as the United States Court of Veterans Appeals prior to March 1, 1999). For that reason and to ensure that the VA has met its duty to assist the veteran in developing the facts pertinent to his appeal, the case is REMANDED to the RO for the following action: 1. The RO should notify the veteran that he may submit additional evidence and argument in support of his claim. See Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). 2. The RO should also attempt to secure copies of all VA medical records pertaining to the veteran dated from November 1997, the date of the most recent outpatient treatment record in the claims file. 3. The RO should also obtain a copy of any decision of the Social Security Administration pertaining to the veteran and copies of all medical records associated with his claim for such benefits. 4. The RO should then schedule the veteran for a VA examination for the purpose of ascertaining the severity of his service-connected ulnar nerve neuropathy of the right upper extremity. The RO should inform the veteran of the consequences of failing to report for the scheduled examination "without good cause." It is very important that the examiner be afforded an opportunity to review the veteran's claims file prior to the examination; and the examination should include all necessary tests and studies. Also, the veteran's fingers of the right upper extremity should be examined for degrees of both active and passive range of motion and any limitation of function of the fingers or any other parts affected by the service-connected ulnar nerve neuropathy of the right upper extremity should be noted. The examiner should also be asked to note the normal range of motion of all parts measured. Additionally, the examiner should note whether any weakened movement, excess fatigability, or incoordination is attributable to the service-connected ulnar nerve neuropathy of the right upper extremity; and, 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. The examiner should also be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the right upper extremity is used repeatedly over a period of time due to the service-connected ulnar nerve neuropathy of the right arm. This determination should, 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. The examiner should also note and describe the degree of severity of any neurological residuals of the service-connected ulnar nerve neuropathy of the right arm and the objective evidence of such residuals. Specifically, the examiner should note, if present, any "griffin claw" deformity, very marked atrophy in the dorsal interspace and thenar and hypothenar eminences, loss of extension of the ring and little fingers, inability to abduct the thumb, or weakness of flexion of the wrist. 5. After the development requested above has been completed to the extent possible, the RO should again review the record in light of the additional evidence. If any benefit sought, for which an appeal has been perfected, remains denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto with additional argument and/or evidence. 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 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 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. JEFF MARTIN 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) (1998).