Citation Nr: 0001791 Decision Date: 01/21/00 Archive Date: 01/28/00 DOCKET NO. 98-10 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an abnormal electrocardiogram/cardiac arrhythmia, also claimed as a heart condition. 2. Evaluation of residuals of a right (major) 5th finger injury with proximal interphalangeal joint contracture, currently rated as noncompensably disabling. 3. Evaluation of bilateral carpal tunnel syndrome, currently rated as noncompensably disabling. 4. Evaluation of right hallux valgus, currently rated as noncompensably disabling. 5. Evaluation of bilateral pes planus, currently rated as noncompensably disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. W. Koennecke, Associate Counsel INTRODUCTION The appellant served on active duty from August 1973 to May 1976, and from June 1976 to August 1997. This case comes before the Board of Veteran's Appeals (the Board) on appeal from an April 1998 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). REMAND The appellant has perfected appeals as to claims for service connection for cardiac arrhythmia/abnormal electrocardiogram and for compensable evaluations for a 5th finger disability, bilateral carpal tunnel syndrome, right hallux valgus and bilateral pes planus. The appeal was certified to the Board in June 1999. In July 1999 the appellant submitted additional medical evidence to the RO that was then forwarded to the Board without a Supplemental Statement of the Case being issued. The cover letter to this evidence indicated that the appellant was submitting medical documents to be used in support of his claim. The appellant stated, "Please make sure that these documents a[re] [sic] placed in my file and are considered when making your decision. I would also like for records to be pulled form [sic] the VA out-patient clinic in reference to my claim." Neither the appellant nor his representative has submitted a waiver which would allow the Board to review the evidence without prior RO review and consideration. See 38 C.F.R. § 20.1304(c) (1999); see also 38 C.F.R. § 19.37(a) (1999). The cover letter that accompanied the medical evidence is insufficient in this regard. Further, the appellant's submission of July 1999 reflects that additional VA Medical Center-Birmingham records must be obtained. Since the appellant has not indicated what disabilities or claims these additional medical records might pertain to, the Board must assume the records are relevant to all of the claims on appeal. Therefore, the Board cannot proceed to address any of the claims on appeal until the additional VA Medical Center record are associated with the claims folder. Furthermore, the record reflects that the RO attempted to obtain additional service medical records which predated those in the file (prior to January 1986), but was informed in January 1999 that it appeared that these records may be located at ARPERSCOM. It was also informed at that time that the request had been forwarded to ARPERSCOM. No response from that organization has been received and made a part of the record on appeal as of the date of this remand. Given that there is a pending claim for service connection for a heart condition, these records, if available, are particularly relevant to the adjudication of this case. Therefore, the RO should on remand further investigate this matter and in so doing, verify whether any additional service medical records are available. The requisition and consideration of medical records which are possibly relevant to an issue on appeal is necessary for the adjudication of the case. Decisions of the Board must be based on all of the evidence available. 38 U.S.C.A. § 7104(a) (West 1991 & Supp. 1999) and Gilbert v. Derwinski, 1 Vet. App. 78 (1990). The duty to assist a claimant in filing an application for benefits under 38 U.S.C.A. § 5103(a) (West 1991) includes the duty to request information which may be pertinent to the claim. See Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under section 5103(a) to assist a claimant in filing a claim pertains to relevant evidence which may exist or could be obtained). The duty to assist is particularly applicable to records which are known to be in the possession of the Federal Government, such as service department and VA medical records. See Counts v. Brown, 6 Vet. App. 473 (1994). In light of the above, the Board believes that it would be useful to have the appellant examined again for compensation purposes to address the severity of the his service-connected disabilities at issue on appeal as well as to address the nature and etiology of the heart condition for which service connection is claimed. It has been nearly two years at this point since the appellant was last examined by VA (March 1998) and in view of the fact that he has received additional outpatient treatment for some his disabilities, further examination is warranted. Also, it is evident based on the representative's arguments expressed in the "Written Brief Presentation" of December 1999 that further examination and assessment of the heart condition is needed. Finally, as part of a June 1998 Appeal to the Board of Veterans' Appeals, the appellant contended that he had degenerative arthritis in both feet that was claimed, but not rated, as part of the original claim. The Board notes that service connection for plantar fasciitis was granted in April 1998. On the issue portion of the rating decision the claim was listed as service connection for bilateral plantar fasciitis claimed as a foot condition with arthritis. Service connection was granted, however, for bilateral plantar fasciitis which was evaluated by analogy under Diagnostic Code 5099-5015 for benign new growths of bone. This diagnostic code directs evaluation of the disability on limitation of motion as for degenerative arthritis. Plantar fasciitis was diagnosed on VA examination with bone spurring identified in service medical records. The RO should clarify whether service connection for bilateral foot arthritis has been granted or considered. Accordingly, this case is REMANDED for the following action: 1. The RO should obtain the additional VA Medical Center-Birmingham outpatient records identified by the appellant in his July 1999 statement in support of the claim. 2. The RO should follow-up on its most recent attempt to obtain all of the appellant's service medical records by contacting ARPERSCOM. In this regard, the RO should request that record searches be undertaken to obtain any and all available service medical and clinical records which correspond to medical treatment provided to the appellant of any kind (inpatient, outpatient, mental health clinic, field station, etc.) for the period while he was on active duty from August 1973 to May 1976, and for any additional records thereafter which date through January 1986. ARPERSCOM should be requested to proceed with all reasonable alternative- source searches which may be indicated by this request. Efforts to obtain these records should be documented and any records received in response to this request should be associated with the claims folder. 3. Upon completion of the above, the RO should schedule the appellant for VA compensation or fee-basis examinations to determine the nature and extent of impairment caused by his service- connected disabilities involving the 5th right finger, carpal tunnel syndrome in the hands, right hallux valgus and bilateral pes planus. All appropriate diagnostic tests and studies deemed necessary to render the opinions requested, and to assess the severity of these disabilities, to include neurological testing and x-rays, if appropriate, should be conducted. All pertinent symptomatology and medical findings should be reported in detail. Examining physicians should be specifically requested to proffer opinions as to the specific extent and severity of each disability evaluated pursuant to this remand, to include a complete and detailed discussion of all functional limitations associated with the condition, precipitating and aggravating factors (i.e., movement and activity), effectiveness of any pain medication or other treatment for relief of pain, functional restrictions from pain on motion, and the effect the disability has upon daily activities. In that the examination is to be conducted for compensation rather than for treatment purposes, the physician should also be advised to address the functional impairment of each disability in correlation with the criteria set forth in the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1999). The examinations requested herein should also address the degree of severity and medical findings that specifically correspond to the criteria listed in the Rating Schedule for any related traumatic arthritis, limitation of motion, ankylosis, etc., and other impairments pursuant to the applicable diagnostic codes as well as for any existing neurological impairment, if appropriate. The examinations must also cover range of motion (ROM) testing where applicable, and should report the exact ROM of the affected joint of joints. The ROM results should be set forth in degrees, and the report should include information as to what is considered "normal" range of motion. If the appellant does not cooperate in such testing, this fact should be specifically noted and the examiner should provide a discussion explaining how the appellant's failure to fully cooperate with ROM testing impacts the validity of the medical examination. The examinations should further address the extent of functional impairment attributable to any reported pain, and in so doing, should include a detailed account of all related pathology for each disability evaluated, including arthritis or neurological disorder, if found to be present. Moreover, the examinations must cover any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, and pain with use in the affected joints of the fingers, hands, toes and feet, and provide an opinion as to how these factors result in any limitation of motion and/or function of the affected joints. If the appellant describes flare-ups of pain, the examiner should offer an opinion as to whether there would be additional limits on functional ability during flare-ups, and if feasible, express this in terms of additional degrees of limitation of motion during the flare-ups. If an examiner is unable to offer an opinion as to the nature and extent of any additional disability during a flare-up that fact should be so stated. Finally, the examinations should include medical opinions addressing the severity of these disabilities and the impact each has, whether singularly or in combination, on the appellant's employability. A complete rationale for all conclusions reached must be provided. The claims folder and a copy of this remand must be made available to and reviewed by the examining physician in conjunction with the requested examinations. 4. The RO should also schedule the appellant for a comprehensive VA cardiovascular examination. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. The examiner should determine the true diagnoses of any currently manifested heart disorder(s). The diagnosis(es) must be based on examination findings, all available medical records, and any special testing deemed appropriate. Further, for any heart disorder diagnosed, the physician should specifically address the following questions: (1) whether the medical evidence on file establishes the presence of the heart disorder during any of the appellant's periods of military service; (2) if there is no medical evidence of a heart disorder during any of the appellant's periods of service, the physician should clearly indicate so; and (3) based on all the medical records and without resorting to speculation, the physician should indicate what is the date of onset of any current heart disorder found on examination. The examiner should provide a comprehensive report including complete rationale for all conclusions reached. The report of the examination should be associated with the claims folder. 5. The appellant should be given adequate notice of all scheduled examinations. If he fails to report for an examination, this fact must be noted in the claims folder and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims folder. 6. Subsequently, the RO should 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, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports to ensure that they are in compliance with the directives of this REMAND. The RO should specifically review the examination reports to determine if they meet the requirements specified above. If a report is deficient in any manner or fails to include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. 38 C.F.R. § 4.2 (1999); Stegall v. West, 11 Vet. App. 268 (1998). 7. Following completion of the above, the RO should readjudicate the claims now in appellate status before the Board, as listed on the title page of this REMAND, with consideration of all the evidence of record, including the evidence submitted by the appellant in July 1999 as well as any evidence developed pursuant to the Board's remand instructions. If the decision on any claim remains adverse to the appellant in any manner, he and his representative should be furnished a supplemental statement of the case which provides adequate notice of all actions taken by the RO subsequent to the issuance of the December 1998 supplemental statement of the case. 8. The RO should also clarify its determination of entitlement to service connection for bilateral foot arthritis, and inform the appellant of its determination regarding this matter. Thereafter, the case should be returned to the Board, if in order. 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. CHRISTOPHER P. KISSEL Acting 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).