Citation Nr: 0000603 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 93-14 313A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating in excess of 10 percent for residuals of a right wrist fracture. 2. Entitlement to a compensable rating for residuals of a left elbow fracture. 3. Entitlement to a compensable rating for residuals of a left pelvis fracture. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel REMAND The veteran had active service from December 1973 to December 1976 and from September 1978 to September 1988. This matter came to the Board of Veterans' Appeal (Board) on appeal from a February 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In that rating decision, the RO granted service connection for residuals of a right wrist fracture, residuals of a left elbow fracture and residuals of a left pelvis fracture. The veteran's disagreement with the assigned ratings led to this appeal. The veteran testified before the undersigned Member of the Board at a hearing at the RO in March 1998. In June 1998, the Board remanded the case to the RO for additional development, and it is now before the Board for further appellate consideration. In response to the Board's remand, the RO arranged for a VA examination of the veteran, which was conducted in July 1998. In March 1999, the RO returned the examination report to the examiner for opinions requested by the Board, but the examiner's response, dated in April 1999, does not, in the Board's opinion, address the questions of whether, for each disability at issue, there would be additional limits on functional use on repeated use or during flare-ups, nor does the examiner's response provide an opinion as to the impact of each of the veteran's service-connected disabilities on his ability to work. Further, the Board had requested that additional X-ray studies be obtained in conjunction with the examination, but this was not done. Under the circumstances, the Board will request that the RO arrange for an additional examination and medical opinions pertaining to the veteran's service-connected disabilities. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in the report of the July 1998 VA examination, the examiner reported that the veteran was currently using no type of brace or support, that he currently took no medication and said he had received no medical evaluation or definitive treatment since 1995. In a statement dated in June 1999, the veteran reported that he was currently using a right wrist brace issued by VA in Kansas City and that he was taking Ibuprofen issued by VA in Kansas City for pain in his right wrist and left elbow. He also stated that he was currently unemployed because of the pain from his right wrist, left elbow and left pelvis fracture. The veteran's statement indicates that there may be available VA treatment records pertinent to his claim, and those records should be obtained. In addition, the RO should request that the veteran clarify whether he is raising the issue of entitlement to a total rating based on unemployability due to service connected disabilities. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he identify the names, addresses and approximate dates of treatment for all VA and non-VA health care providers from whom he has received treatment for any of his service-connected disabilities at any time since July 1998. In any event, the RO should obtain and associate with the claims file outpatient treatment records for the veteran from the VA medical center in Kansas City, Missouri, dated from July 1998 to the present. 2. The RO should also request that the veteran clarify whether he is claiming entitlement to a total rating based on unemployability due to service- connected disabilities. 3. Then, the RO should arrange for VA examination of the veteran by a board certified orthopedist, if available, to determine the nature and extent of the veteran's residuals of a right wrist fracture, residuals of a left elbow fracture and residuals of a left pelvis fracture. All indicated studies, including, but not limited to, X-rays and range of motion studies in degrees, should be performed. Tests of joint motion against varying resistance should be performed. The extent of any incoordination, weakened movement and excess fatigability on use should be described for the right wrist, left elbow and left pelvis. The physician should be requested to describe for each joint involved any objective evidence of pain and any functional loss due to pain. The physician should also express, for each involved joint, an opinion concerning whether there would be additional limits on functional use on repeated use or during flare-ups (if the veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare-ups for each joint. If this is not feasible, the physician should so state. The physician should also provide an opinion concerning the impact of each of the veteran's service-connected disabilities on his ability to work. The rationale for all opinions expressed should also be provided. The claims file must be made available to the physician for review, and the physician should state, in writing, that he has reviewed the veteran's claims file. 4. Thereafter, the RO must review the claims file and ensure that all development actions, including the medical examination and requested opinions, have been conducted and completed in full. If any development is incomplete, the RO should take appropriate corrective action. 5. Then, the RO should undertake any other indicated development and thereafter readjudicate the claims on appeal. The RO should consider 38 C.F.R. § 4.10 regarding the effect of each disability on the veteran's ordinary activity and should consider all pertinent diagnostic codes under the VA Schedule for Rating Disabilities in 38 C.F.R. Part 4. The RO should also consider 38 C.F.R. § 4.40 regarding functional loss due to pain, 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination or pain on movement of a joint and 38 C.F.R. § 4.59 regarding painful motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The RO should also determine whether the case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. 6. In addition, if the veteran states that he is claiming entitlement to a total rating based on unemployability due to service-connected disabilities, the RO should undertake any indicated development, adjudicate the claim and inform the veteran of its decision, along with his appellate rights if the decision is adverse to him. 7. If the benefits sought on appeal are not granted to the veteran's satisfaction, or a notice of disagreement is received with respect to any other matter, the RO should issue a supplemental statement of the case addressing all issues in appellate status. The veteran and his representative should be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. 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 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. SHANE A. DURKIN 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).