Citation Nr: 0000880 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 93-25 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE The veteran's dissatisfaction with the initial rating assigned following a grant of service connection for residuals compression fracture T-6 vertebra, with lamina of fractures at T-4 and T-5 vertebrae. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. E. Larkin, Associate Counsel INTRODUCTION The veteran served on active duty from August 1988 to February 1992. This matter was initially before the Board of Veterans' Appeals (Board) on appeal from June 1992 rating action of the Lincoln, Nebraska Regional Office (RO) of the Department of Veterans Affairs (VA), which, inter alia, granted service connection and assigned a 10 percent rating for a compression fracture T-6 with lamina of T-4 and T-5 fractures, effective from February 18, 1992. By an April 1993 rating action, the RO increased the rating to the current level of 20 percent, effective from February 18, 1992. The Board previously remanded the case in October 1995 and March 1998. In the Introduction to the October 1995 remand, the Board noted that the veteran's representative had disagreed with the 10 percent rating assigned to the service-connected dysthymia; however, it was unclear whether the representative was disagreeing with an April 1993 rating decision which granted service connection and assigned the 10 percent rating, effective from February 18, 1992, or a June 1993 RO decision which denied an increased rating. The RO was instructed to determine to which rating decision the disagreement referred. Although the RO increased the rating in an August 1997 rating decision to 30 percent, effective from October 18, 1995, there was no determination made as directed by the Board. As such, this matter is again referred to the RO for appropriate action; specifically, to determine whether the original disagreement pertained to the April or June 1993 rating decision. In the Introduction to the March 1998 remand, the Board noted that, although the veteran's representative had submitted a notice of disagreement pertaining to an August 1997 RO decision which granted service connection and assigned a 10 percent rating for a lung disorder, secondary to chest injury, the RO had not issued a statement of the case (SOC). The RO issued a SOC as to that issue in May 1998. The veteran's representative included the issue of an increased rating for the service-connected lung disorder in a November 1999 statement submitted in lieu of VA Form 646; however, that issue has not been perfected for appeal and is not presently before the Board. As the appeal regarding the evaluation of the service- connected residuals of compression fracture T-6 involves an original claim, the Board has framed that issue as shown on the title page. See Fenderson v. West, 12 Vet. App. 119 (1999). REMAND The United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (hereinafter, the Court) has held that, when a veteran claims a service-connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992); Shipwash v. Brown, 8 Vet. App. 218 (1995). Inasmuch as the veteran has submitted a well-grounded claim, VA is obligated to assist him in the development of that claim. 38 U.S.C.A. § 5107(a) (West 1991). The veteran contends that the service-connected residuals of a compression fracture T-6 are more severe than the current rating, assigned following the initial grant of service connection, indicates. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found- "staged" ratings. See Fenderson, supra. On remand, the RO should consider a staged rating and explain, with applicable effective date regulations, any change in the evaluations during the appeal period. When the Board first reviewed the veteran's claim in October 1995, it was noted that claims of secondary service connection for arthritis of the thoracic spine and neurologic disability of the spine were inextricably intertwined with the increased rating claim on appeal. The case was remanded in order to obtain additional medical evidence necessary for adjudication of all of the claims on appeal and the RO was instructed to adjudicate the claims of secondary service connection. The Board remanded the case for a second time in March 1998 in order to obtain evidence necessary for appellate disposition and the RO was again instructed to adjudicate the inextricably intertwined claims of secondary service connection. Although the RO did undertake necessary development of the medical evidence, the claims of secondary service connection have still not been adjudicated. Thus, the Board finds that the case must be remanded again in order to allow the RO the opportunity to adjudicate the claims of secondary service connection in the first instance. Furthermore, a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. With regard to the claim for increase, the Board notes that the 20 percent rating presently assigned includes the maximum schedular evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5291 for limitation of motion of the dorsal spine. Thus the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 (See DeLuca v. Brown, 8 Vet. App. 202 (1995)) would not be for application. The only applicable basis for an increased rating for the veteran's thoracic spine disability is under the provisions of Diagnostic Code 5288 which pertains to ankylosis of the thoracic spine. Johnston v. Brown, 10 Vet. App. 80 (1997). Thus, to ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should take appropriate steps to contact the veteran in order to obtain the names and addresses of all medical care providers who treated him for his service-connected thoracic spine disorder since service. After securing the necessary release, the RO should attempt to obtain copies of all records, not already obtained, from the identified treatment sources. 2. The veteran should be afforded an appropriate VA examination in order to determine the current severity of the service-connected thoracic spine disability. All indicated tests and studies should be conducted, and all findings reported in detail. The claims folder must be made available to the examiner for review. The examiner should indicate whether there is ankylosis of the thoracic spine. In addition, the examiner should provide a definitive statement as to whether the service- connected thoracic spine disorder includes arthritis of the thoracic spine and/or any secondary neurological disorder found on examination. All finding, opinions and bases therefor should be set forth in detail. 3. 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 examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be taken. Thereafter, the RO should again review the veteran's claims. This should include consideration of the assignment of a staged rating for the service- connected thoracic spine disability, taking into consideration all applicable rating criteria and adjudication of the inextricably intertwined claims of secondary service connection for arthritis of the thoracic spine and neurologic disability of the spine. If any benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations and given the opportunity to respond thereto. 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. BARBARA B. COPELAND 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).