Citation Nr: 0000573 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 99-01 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for the residuals of a cerebral concussion, to include headaches, dizziness and anxiety, currently evaluated as 30 percent disabling. 2. Entitlement to an increased evaluation for the residuals of a fractured left leg with limitation of motion of the knee and ankle, with scars of the posterior calf muscle and Achilles tendon, currently evaluated as 20 percent disabling. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his son ATTORNEY FOR THE BOARD L. M. Barnard, Counsel REMAND The veteran served on active duty from December 1942 to August 1947. This appeal arose from a May 1998 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA), Regional Office (RO), which denied entitlement to increased evaluations for the service-connected residuals of a cerebral concussion and a fractured left leg. In June 1998, the RO issued a decision which denied entitlement to individual unemployability. In October 1998, a rating action confirmed and continued the denials of the benefits sought. In October 1999, the veteran and his son testified at a Video Conference hearing before a member of the Board of Veterans' Appeals (Board). VA has a duty to assist the veteran in the development of all facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). This includes the duty to obtain a VA examination which provides an adequate basis upon which to determine entitlement to the benefit sought, as well as the duty to obtain all relevant treatment records. Littke v. Derwinski, 1 Vet. App. 90 (1991). Examinations by specialists are recommended in those cases which present a complicated disability picture. Hyder v. Derwinski, 1 Vet. App. 221 (1991). The veteran was last examined by VA in April 1998. After reviewing the report of the examination, it is unclear as to what extent the veteran is disabled solely by his cerebral concussion residuals (the residuals of multiple cerebrovascular accidents complicates the disability picture). The degree of disability caused by the concussion residuals needs to ascertained, to the extent possible, prior to a final determination of the veteran's claim. Moreover, the degree of disability resulting from the service-connected left leg fracture residuals is also unclear. The VA examination conducted in April 1998 did not provide any range of motion findings for the left ankle. Some motion findings were noted in November 1998, but these were incomplete. While range of motion studies of the left knee joint were provided during the April 1998 VA examination, the veteran had indicated in his October 1999 hearing testimony that his left lower extremity disability had worsened. The examination in question also did not refer to any additional disability resulting from pain on movement, less movement than normal, more movement than normal, weakened movement, excess fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995) The veteran has also alleged that he is unemployable because of his service-connected disorders. However, there is some dispute in the record as to whether he is unable to work solely because of the service-connected disabilities. Therefore, it is found that such an opinion would be helpful in determining entitlement to the benefit sought. See Friscia v. Brown, 7 Vet. App. 294 (1995); Gary v. Brown, 7 Vet. App. 229 (1994). Finally, the veteran has indicated that he continues to seek treatment for his service-connected disorders. In order to ensure that the record is complete, it is found that the RO should ascertain whether there are any additional pertinent outpatient treatment records available. Under the circumstances of this case, it is found that additional assistance would be helpful, and this case will be REMANDED to the RO for the following: 1. The RO should contact the West Palm Beach VA outpatient clinic and request copies of the veteran's treatment records developed between May 1999 and the present. 2. Once the above-requested development has been completed and any records have been associated with the claims folder, the RO should afford the veteran complete orthopedic, neuropsychiatric and surgical examinations by qualified physicians in order to ascertain the current nature and degree of severity of the service- connected right ulna and left tibia/fibula fracture residuals, the cerebral concussion residuals and the scars. a) the orthopedic examination of the right arm and the left leg should include all indicated special tests; these must include range of motion testing. The examiner should note the range of motion of the right elbow and the left knee and ankle. The examiner must obtain active and passive ranges of motion (in degrees), state if there is any limitation of function and describe it, and state the normal range of motion. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during flare- ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups or when the affected joints are used repeatedly. Special attention should be given to the presence or absence of pain, stating at what point in the range of motion pain occurs and at what point pain prohibits further motion. The factors upon which the opinions are based must be set forth. The examiner should provide a complete rationale for all conclusions reached and explain any loss of mobility reported in the above examination. b) the neuropsychiatric examination should differentiate, to the extent possible, between those symptoms related to the service-connected cerebral concussion residuals and those symptoms related to other disorders, such as cerebrovascular accidents. c) the surgical examination should fully describe the service-connected scars; specifically, it should be noted whether they are tender and painful on objective demonstration or are poorly nourished with repeated ulceration. The examiners must be provided the claims folder, to include any evidence obtained in conjunction with this remand, prior to the examinations so that the veteran's entire medical history can be taken into consideration, and the examiners are asked to indicate in the examination reports that the file has been reviewed. 3. Following the completion of the above-requested examination, the examiners should provide a joint opinion as to the effect that the veteran's service-connected disabilities have upon his ability to work. Disability caused by any nonservice-connected disorders is not to be considered in rendering this opinion. 4. After the completion of the above development, the RO should readjudicate the veteran's claims for increased evaluations for his service-connected left leg and concussion residuals, as well as his claim for individual unemployability. If any decision remains adverse to the veteran, he and his representative should be provided an appropriate supplemental statement of the case, and an opportunity to respond. 5. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examinations do not include all tests reports, special studies or opinions requested, appropriate corrective action is to be implemented. 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. C. P. RUSSELL 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).