Citation Nr: 0000613 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 94-32 375 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased rating for degenerative arthritis of the lumbar spine, currently evaluated as 40 percent disabling. 2. Entitlement to an increased rating for degenerative joint disease of the cervical spine, currently evaluated as 20 percent disabling. 3. Entitlement to an increased rating for degenerative joint disease of the left shoulder, currently evaluated as 20 percent disabling. 4. Entitlement to an increased rating for degenerative joint disease of the left knee, currently evaluated as 10 percent disabling. 5. Entitlement to an increased rating for degenerative joint disease of the right knee, currently evaluated as 10 percent disabling. 6. Entitlement to an increased (compensable) rating for tinea cruris. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jeffrey A. Pisaro, Counsel INTRODUCTION The veteran had active service from July 1964 to July 1967, from July 1968 to April 1972, and from April 1973 to August 1986. This appeal arises from a March 1997 rating decision of the Huntington, West Virginia Regional Office (RO) which denied entitlement to higher evaluations for the service connected left and right knee, low back, neck, left shoulder and tinea cruris. The case was remanded from the Board to the RO in December 1997 for additional development of the evidence. The issue of service connection for a hiatal hernia was also returned to the RO as part of the December 1997 remand. By rating decision in August 1999, service connection was granted for hiatal hernia and, thus, that issue is no longer on appeal. REMAND With regard to the increased rating claims for the low back, neck, left shoulder, and knees, it was noted in the December 1997 remand that the August 1996 VA rating examination did not comply with the requirements set out in DeLuca v. Brown, 8 Vet. App. 202 (1995). In that case, the Court held that in evaluating a service-connected disability involving a joint, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The Court has observed that VA is required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2; Green v. Derwinski, 1 Vet. App. 121 (1991). A review of the July 1999 VA orthopedic examination report reveals that the examiner did not have the veteran's claims folder prior to conducting the examination. Moreover, pursuant to the remand, the RO was instructed to obtain treatment records for the disabilities at issue prior to conducting the requested examination. VA outpatient records dating from 1996 to September 1999 were received by the RO in late September 1999, several months following the VA rating examination in violation of the Court's mandate in Green. As the July 1999 VA examination (and any medical opinion it generated) is flawed, the requested evidentiary development regarding the increased rating issues on appeal has not been accomplished. In the case of Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand was necessary due to the RO's failure to follow the directives in the Board's remand. It was further held that where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Thus, the case must be returned to afford the veteran additional VA orthopedic and dermatology examinations. The provisions of 38 C.F.R. § 3.655 (failure to report for VA examination) are especially relevant in the context of the Board's current remand for VA examinations concerning the veteran's increased rating claims. § 3.655(a) provides that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. Subsection (b), which applies to the instant appeal regarding a claim for increase, provides that when the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. In view of the foregoing, the case is REMANDED to the RO for the following development: 1. The RO should contact the veteran and obtain the names and addresses of all health care providers who have treated him for the disabilities at issue in recent years. Thereafter, the RO should obtain legible copies of all records that have not already been obtained to include treatment records from the Clarksburg VA medical center from September 1999 to the present. All records, once obtained, must be associated with the claims folder. 2. Only after completion of the above action, the veteran should be afforded VA orthopedic and dermatology examinations to determine the current nature and extent of the service connected low back, neck, left shoulder, left and right knees and tinea cruris. The importance of appearing for the scheduled examinations and the consequences of his failure to do so have been made known to the veteran in the body of the remand above. The claims folder must be made available to the examiners prior to the examinations. All disability should be evaluated in relation to its history with emphasis on the limitation of activity and functional loss due to pain imposed by the disabilities at issue in light of the whole recorded history. All indicated diagnostic tests should be performed. In general, the examiners should record all complaints and clinical findings pertaining to the disabilities at issue. The orthopedic examiner should provide complete range of motion findings for the veteran's low back, neck, left shoulder, and left and right knees. Normal range of motion findings should also be provided for each joint. The examiner should indicate whether there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss of the service connected low back, neck, left shoulder, and left and right knees due to any of the following: (1) pain on use, including flare ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The above determinations must, if feasible, be expressed 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 under § 4.40, and weakened movement, excess fatigability or incoordination under § 4.45. If the examiner is unable to make any of the above determinations, it should be so indicated on the record. Based on a complete review of the record and the current examination, the dermatology examiner should determine whether it is at least as likely as not that any skin condition on any part of the veteran's body other than the groin area is a manifestation of or has been aggravated by the service connected tinea cruris. In answering this question, the standard of proof which is underlined must be utilized. The examiner should describe in detail all manifestations of tinea cruris of the groin and any manifestations of the same condition, if any, on other parts of the body. The examiner should note whether there is any exfoliation, exudation or itching; whether there is ulceration or systemic or nervous manifestations and whether tinea cruris causes a marked disfigurement or an exceptionally repugnant condition. Each of these criteria must be addressed by the examiner. 3. Upon receipt of the examination reports, the RO should review the examination reports to ensure that they are adequate for rating purposes. If an examination is inadequate for any reason, the RO should return the examination report to the examining physician and request that all questions be answered. 4. After completion of the requested development, the RO should review the veteran's increased rating claims on the basis of all of the evidence of record. Consideration should be given to 38 C.F.R. §§ 4.40 and 4.45, and the provisions of Green, DeLuca and Massey. If the action taken remains adverse to the veteran in any way, he and his representative should be furnished an appropriate supplemental statement of the case to include the provisions of 38 C.F.R. § 3.655 which should be adhered to in the event that the veteran fails to appear for a scheduled examination without good cause. If the veteran fails to appear for a scheduled examination, the RO should include verification in the claims folder as to the date the examination was scheduled and the address to which notification was sent. The veteran and his representative should then be afforded a reasonable opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action until he is informed, but he 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). The purpose of this REMAND is to ensure due process of law and to obtain additional information. No inference should be drawn regarding the final disposition of the claim as a result of this action. 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. Iris S. Sherman 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).