Citation Nr: 0003397 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 93-26 460 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased rating for the residuals of a fracture of the C2 vertebra with degenerative disc disease of the cervical spine. 2. Entitlement to an increased (compensable) rating for numbness of the left hand. 3. Entitlement to an increased (compensable) rating for numbness of the left facial nerve, maxillary branch. ATTORNEY FOR THE BOARD J. Horrigan, Counsel INTRODUCTION The veteran had active service from April 1981 to July 1992. This appeal arises from an October 1990 rating action by the RO in San Diego, California, which granted service connection for the residuals of a neck injury effective from January 1990. The RO evaluated the various manifestations of this service connected disability as follows: limitation of motion of the cervical spine secondary to a C2 fracture with degenerative disc disease, C6-7, rated as 10 percent disabling; numbness of the left hand (minor) evaluated as noncompensable; and numbness of the left facial nerve, maxillary branch, evaluated as noncompensable. Two Travel Board hearings were scheduled at the Honolulu, Hawaii RO prior to February 1993. However, both were canceled due to the Board having changed its' plans to conduct hearings at that RO. Subsequently, the veteran relocated to Massachusetts and the case was transferred to the Boston RO. A Travel Board was scheduled at that RO in November 1993. Correspondence was received from the veteran dated October 27, 1993, canceling his request for the Travel Board hearing. This case was remanded by the Board for further development in December 1995. Subsequent to this remand, the veteran moved to the state of Oklahoma and the claims folder was therefore transferred to the RO in Muskogee, Oklahoma. It is before the Board for further appellate consideration at this time. REMAND In the Board's remand of December 1995, the RO was instructed, among other things, to schedule the veteran for a VA orthopedic examination to determine the degree of severity of his cervical spine disability, the numbness of the left hand, and the numbness involving the left facial nerve. Pursuant to the Board's remand, the Boston RO scheduled the veteran for VA orthopedic and neurological examinations in December 1997. The claims folder contains a computer- generated document from a VA medical facility that indicated that the veteran had failed to report for these VA examinations. This document also contains a notation to the effect that the veteran had a new residential address in Tulsa, Oklahoma. Thereafter, the RO in Muskogee scheduled the veteran for VA orthopedic and neurological examinations in June 1998. The record contains a computer-generated document from the VA medical facility to the effect that the veteran failed to report for these examinations. The Muskogee RO again scheduled the veteran for VA orthopedic and neurological examinations in June 1999, but a further computer generated document from the VA medical facility indicates that he again failed to report for the examinations. (The claims folder does not contain a copy of any of the letters to the veteran from the VA medical facilities informing him of the date, time, and location of the orthopedic and neurological examinations scheduled in December 1997, June 1998, or June 1999.) In a supplemental statement of the case dated in September 1999, the RO informed the veteran that it had denied his claims for increased ratings for his cervical spine disability, his left hand numbness, and his facial nerve disability on the basis of the evidence of record in the claims folder. This is technically incorrect, since the provisions of 38 C.F.R. § 3. 655 (b) require that, when a veteran without good cause fails to report for a VA examination scheduled in conjunction with a claim for an increased rating, the claim must be denied. Moreover, as noted above, the claims folder does not contain a copy of any of the letters from the VA medical facilities informing him of the date, time, and location of the orthopedic and neurological examinations scheduled in December 1997, June 1998, or June 1999. This omission is significant because a copy of such a letter is necessary to establish that the veteran was properly informed regarding the date, time, and place of the examinations. The Board also notes that the veteran last received a VA examination of his service connected cervical spine disability in July 1990. Since that examination, the decision of the United States Court of Appeals for Veterans Claims (Court) in DeLuca v. Brown, 8 Vet. App. 202 (1995) has held that the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered in rating a disorder which may be evaluated on the basis of limitation of motion. Under the provisions of 38 C.F.R. §§ 4.40 and 4.45, consideration must be given to functional loss due to pain, weakened movement, excess fatigability, incoordination, and pain on undertaking movement. In view of the foregoing, this case is REMANDED to the RO for the following actions: 1. The RO should again schedule the veteran for VA orthopedic and neurological examinations to determine the severity of his cervical spine disorder, numbness in the left hand, and left facial nerve disorder. The RO should contact the appropriate person at the VA medical facility conducting the examinations, and arrange for copies of the letter(s) informing the veteran of the date, time and location of these examinations to be forwarded to the RO for incorporation into the claims folder. In addition, the RO should inform the veteran, in accordance with instructions in this remand, that in the event that he fails to appear for the above examinations, without good cause, his claims will be denied under the provisions of 38 C.F.R. § 3.655(b). 2. If the veteran appears for his VA orthopedic examination, the claims folder must be made available to the examining physician so that the all pertinent clinical records can be reviewed in detail. All clinical findings noted on the examination should be reported in detail. X-rays of the cervical spine must be performed and the examiner and/or radiologist must comment as to whether or not there is a demonstrable deformity of the fractured C2 vertebrae. Range of motion in the cervical spine should be reported in degrees of motion, and in all planes. The examiner should also characterize any limitation of motion in the cervical spine as slight, moderate, or severe in degree. The examiner should also comment as to whether the veteran's cervical spine disability involves cervial intervertebral disc syndrome and, if so, whether such is slight, moderate, severe, or pronounced in degree. In regard to the provisions of 38 C.F.R. §§ 4.40 and 4.45, the examining physician should comment as to functional loss due to pain on undertaking motion, if any, as well as the presence or absence of weakened movement, excess fatigability on use, and incoordination caused by the veteran's service connected cervical spine disability. 3. If the veteran appears for the VA neurological examination, the claims folder must be made available to the examining physician so that the all pertinent clinical records can be reviewed in detail. All pertinent clinical findings in regard to the neurological dysfunction in the veteran's left hand and left face should be reported in detail. The examining physician should specifically identify the injured nerve(s) in the veteran's left upper extremity and the left side of his face and the degree of disability in each. In regard to nerve dysfunction in the veteran's left hand, such should be described as complete paralysis, severe incomplete paralysis, moderate incomplete paralysis, mild incomplete paralysis, or asymptomatic. Any nerve dysfunction in the left side of the veteran's face should be described as complete paralysis, severe incomplete paralysis, moderate incomplete paralysis, or less than moderate incomplete paralysis. 4. When the above development has been completed, the RO should review the claims folder. If the veteran appeared for the above orthopedic and neurological examinations, the RO must review the reports of the examinations in order to insure that all the requested findings are included in the reports of these examinations and that any deficiencies are corrected. If the veteran does not appear for these examinations, the RO must insure that copies of the letters from the VA medical facility to the veteran informing him of the date, time, and location of these examinations are associated with the claims folder. 5. Then, the RO should review of the veteran's claims. If the veteran appeared for the examinations discussed above, the claims should be decided on the basis of the evidence of record. If the veteran did not appear for the above examinations, the claims should be denied under the provisions of 38 C.F.R. § 3.655(b). 6. If the veteran's claims are denied, he should be afforded a supplemental statement of the case and afforded a reasonable opportunity to respond. Then, the case should be returned to this Board for further appellate consideration, if otherwise appropriate. No action is required of the veteran until he is so informed by the RO. The purpose of this remand is to obtain additional clinical evidence, to afford the veteran due process of law, and to comply with precedent decisions of the Court. 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. BRUCE E. HYMAN 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).