Citation Nr: 0001265 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 97-32 021A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased disability rating for grand mal epilepsy, currently evaluated as 60 percent disabling. 2. Entitlement to an increased disability rating for rupture of lumbar disc, status post laminectomy at L4-5 with left- sided weakness, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and veteran ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The veteran had active military service from May 1973 to May 1976 and from July 1976 to August 1984. She has been declared incompetent for VA purposes, and the appellant is her cousin and custodian. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, in pertinent part, denied increased disability ratings for the veteran's service- connected epilepsy and back disorder. After the appellant and veteran perfected the appeal, a February 1998 supplemental statement of the case assigned a 60 percent disability rating for the veteran's epilepsy. However, this was not a full grant of the benefit sought on appeal because a higher disability rating is available under Diagnostic Code 8910. On a claim for an original or an increased rating, the claimant is generally presumed to be seeking the maximum benefit allowed by law and regulation, and such a claim remains in appellate status where a subsequent rating decision awarded a higher rating, but less than the maximum available benefit. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, this issue remains before the Board. In October 1999, a hearing was held before the undersigned, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7107(c) (West Supp. 1999). REMAND Additional evidentiary development is needed prior to appellate disposition of these claims. First, it appears that the veteran's complete VA treatment records have not been obtained. VA records are considered part of the record on appeal since they are within VA's constructive possession, and these records must be considered in deciding the veteran's claims. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). She has stated that she has received treatment at the VA Medical Centers in Birmingham and Huntsville since August 1996. The RO requested these records, but it was indicated that no records were available. However, the request was submitted under the veteran's current last name, and prior VA treatment records have been in her former name. Therefore, it is possible that there are VA treatment records at Birmingham and Huntsville under the veteran's former name, and the RO should again attempt to obtain these records to ensure that a complete record is before the Board. Second, there are private medical records that the RO requested but was unable to obtain. Requests were sent to Drs. Tracy Lowery and George Douthit in January 1997, but no response was received. The RO did not inform the appellant and the veteran of the inability to obtain these records, and this must be done. Since it is necessary to remand this case, the RO should request these records again. If any request is unsuccessful, inform the appellant and veteran that the records could not be obtained, and advise them that these treatment records are important to these claims. The appellant and the veteran must be told that it is their responsibility to present evidence in support of these claims, and they should be offered an opportunity to obtain and present such records if they want them to be considered. 38 C.F.R. § 3.159(c) (1999); see also 38 U.S.C.A. § 5103(a) (West 1991). Third, the RO also requested the veteran's treatment records from Dr. Barton Perry, but the request was returned by the United States Postal Service as undeliverable. The RO informed the appellant and veteran of this fact via a November 1997 letter and asked if there was a better address. In the November 1997 substantive appeal, a different address was provided for Dr. Perry, but no further attempts were made to obtain these records. The RO should request the veteran's treatment records from Dr. Perry at the address provided in the substantive appeal. If the request is again unsuccessful, the RO must inform the appellant and the veteran, and they should be offered an opportunity to obtain and present these records if they want them to be considered in connection with these claims. 38 C.F.R. § 3.159(c) (1999); see also 38 U.S.C.A. § 5103(a) (West 1991). Fourth, VA regulations require that a physical examination be conducted when evidence indicates that there has been a material change in a disability or where it is necessary to determine the current severity of a disability. 38 C.F.R. § 3.327(a) (1999). However, the veteran was not provided VA examinations in conjunction with her claims for increased ratings. The last VA examination of record was conducted in 1989. It is necessary to provide the veteran VA examinations to evaluate the current severity of her service-connected conditions since she has indicated that they have worsened. See Snuffer v. Gober, 10 Vet. App. 400, 402-403 (1997); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) ("where the record does not adequately reveal the current state of the claimant's disability and the claim is well grounded, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination"). Accordingly, this case is REMANDED for the following: 1. Obtain and associate with the claims file the veteran's medical records from the VA Medical Centers in Birmingham and Huntsville for all hospitalization and outpatient treatment from 1996 to the present. Request that a search for records be conducted under both the veteran's current and former last names. 2. Ask the veteran to submit appropriate release forms for her treatment records from Drs. Douthit, Lowery, and Perry, as well as any other private physician that has recently treated her for her epilepsy or back condition. Request actual treatment records from these physicians, and, if any request for private medical records is unsuccessful, advise the appellant and the veteran that the actual treatment records are important to these claims. Advise the appellant and veteran that it is their responsibility to submit them. See 38 C.F.R. § 3.159(c) (1999). Allow an appropriate period of time within which to respond. 3. After obtaining as many of the above referenced records as possible and/or allowing the appellant and the veteran an opportunity to submit such records, schedule the veteran for appropriate VA examinations to evaluate her epilepsy and back condition. It is very important that the examiners be provided an opportunity to review the claims folder and a copy of this remand prior to the examinations. The examiners should indicate in the reports that the claims file was reviewed. The examiners must provide a complete rationale for all conclusions and opinions. (a) Epilepsy: All necessary tests and studies should be conducted in order to ascertain the severity of the veteran's service-connected grand mal epilepsy. The examiner should elicit information as to the frequency and severity of the veteran's major and/or minor seizures, including specific details as to the symptoms experienced by the veteran during the seizures. If the appellant or any other competent individual accompanies the veteran to the examination, the examiner should elicit information from that person as to the characteristics and frequency of the veteran's seizures. (b) Back condition: All necessary tests and studies should be conducted in order to ascertain the severity of the veteran's service-connected back condition. The examination should include range of motion testing, and all ranges of motion should be reported in degrees. It is requested that the examiner indicate what is normal range of motion for the lumbar spine. All functional limitations are to be identified, including whether there is any pain, weakened movement, excess fatigability or incoordination on movement of the lumbar spine. The examiner should discuss whether there is likely to be additional range of motion loss due to any of the following: (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 lumbar spine is used repeatedly. The examiner is also asked to detail any neurological deficits resulting from the veteran's service-connected back condition. If there is no limitation of motion or function, or no objective indications of pain, such facts must be noted in the report. The examiner should elicit information as to precipitating and aggravating factors (i.e., movement or activity), and the effectiveness of any pain medication or other treatment for relief of pain. The examiner should discuss the effect the veteran's service- connected back disability has upon her daily activities. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 4. Following completion of the above, review the claims folder and ensure that the examination reports include fully detailed descriptions of all opinions requested. If any report does not, it must be returned to the examiner for corrective action. 38 C.F.R. § 4.2 (1999). 5. After completion of the above evidentiary development, readjudicate the veteran's claims, with application of all appropriate laws and regulations. In readjudicating this claim, the RO should consider the additional medical evidence submitted to the Board in October 1999 and any developed upon remand. If any benefit sought on appeal remains denied, provide the appellant and veteran, as well as the representative, a supplemental statement of the case, and allow an appropriate period for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant and the veteran have 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 case 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. BETTINA S. CALLAWAY 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).