Citation Nr: 1754190
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 11-04 432 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUES

1. Entitlement to a rating in excess of 20 percent for cervical osteoarthritis with spondylosis and neuralformina stenosis.

2. Entitlement to a rating in excess of 20 percent for right shoulder impingement syndrome.

3. Entitlement to a rating in excess of 10 percent for thoracic spondylosis, to include an effective date earlier than February 26, 2009 for the award of a separate rating for the thoracic spine disability.

4. Entitlement to a compensable rating for bilateral hearing loss disability.

REPRESENTATION

Appellant represented by: Kathleen L. Day, Attorney at Law

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

M. Riley, Counsel

INTRODUCTION

The Veteran served on active duty from May 1954 to May 1956 and from January 1961 to October 1980. This case comes before the Board of Veterans’ Appeals (Board) on appeal from January 2008, July 2008, and October 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

This case was previously before the Board in August 2015 when it was remanded to provide the Veteran a hearing before a Veterans Law Judge (VLJ). The Veteran testified before the undersigned VLJ in February 2016 at a videoconference hearing and a transcript of the hearing is of record. The case has now returned to the Board for additional appellate action.

The Veteran is represented by a private attorney. In May 2017, the attorney contacted VA and stated that she was withdrawing as the Veteran’s representative. The Board responded with a September 2017 letter notifying the attorney that her motion to withdraw did not comply with Rule 608 of the Board’s Rule of Practice as put forth in 38 C.F.R. § 20.608 (2017). The attorney was also informed that if the Board did not receive a proper motion to withdraw within 30 days from the date of the letter, the Board would assume that she remained the Veteran’s representative and would continue with a review of the Veteran’s appeal. No response to this letter was received and the Board finds that the Veteran is still represented by the private attorney.
This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2012).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.

REMAND

The Board regrets further delay in this case, but finds that a remand is necessary to comply with VA’s duty to assist the Veteran in developing evidence to support the claim. First, the claims file does not contain any records of VA treatment dated after October 15, 2014, though the claims file indicates that the Veteran has continued to receive treatment for all the disabilities on appeal. Second, available VA treatment records show that the Veteran was seen by a private physician for neck and right shoulder pain on several occasions, though records of this treatment are also not before the Board. Finally, there is no medical evidence indicating the severity of the Veteran’s disabilities dated after August 2014, when he was last examined by VA, a period of more than three years ago. Therefore, more recent VA examinations are required to determine the severity of the disabilities on appeal.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1. Obtain the Veteran’s complete medical records from the VA Texas Valley Coastal Bend Health Care System from October 2014 to the present, to include the audiogram report from an August 18, 2010 audiological examination if available from VA’s Vista Imagining system.

2. Contact the Veteran and request that he execute proper release forms to authorize VA to obtain records from all private physicians/facilities that have treated the disabilities on appeal, to include Dr. Puentes of the Prontomed Clinic and South Texas Sports Medicine.

If proper medical release forms are received, obtain copies of all available treatment records from the facilities above and any others identified by the Veteran. Copies of the records must be associated with the claims file. All efforts to obtain the records must be documented in the claims file.

3. After completion of the above, provide the Veteran a VA examination to determine the current severity of his service-connected cervical and thoracic spine disabilities. The claims file must be made available to and reviewed by the examiner.

The examination must include range of motion studies of the cervical and thoracic spine. In reporting the range of motion findings, the examiner must comment on the extent of any painful motion, functional loss due to pain, weakness, excess fatigability, and additional disability during flare-ups. The spine must be tested for pain on both active and passive range of motion with weight bearing and nonweight bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016).

The examiner should further address whether there is ankylosis of the cervical and/or thoracic spine. The examiner should discuss whether the Veteran’s disabilities have resulted in doctor-prescribed bed rest; if so, the examiner should address the frequency and duration of such bed rest in the past 12 months.
The examiner should also identify any evidence of neurological disorders, including neurological impairment in the upper and lower extremities due to the service-connected disability. Any sensory or motor impairment in the extremities due to service-connected disabilities should be identified. The examiner should provide an opinion with respect to any symptoms due to nerve root impingement as to whether they are mild, moderate, moderately severe, or severe.

The complete bases for all medical opinions must be provided.

4. Provide the Veteran a VA examination to determine the current severity of his service-connected right shoulder disability. The claims file must be made available to and reviewed by the examiner.

The examination must include range of motion studies of the right and left upper extremities. In reporting the range of motion findings, the examiner must comment on the extent of any painful motion, functional loss due to pain, weakness, excess fatigability, and additional disability during flare-ups. The shoulders must be tested for pain on both active and passive range of motion with weight bearing and nonweight bearing and if possible with range of motion of the opposite shoulder. See Correia, supra.

The examiner should also determine whether there is ankylosis of the right shoulder, or impairment of the humerus to include fibrous union, nonunion, or loss of head, or impairment of the clavicle or scapula.

The complete bases for all medical opinions must be provided.

5. Schedule the Veteran for a VA audiological examination to determine the current severity of his bilateral hearing loss. The claims file must be made available to and reviewed by the examiner.

The evaluation should be in accordance with the criteria delineated in 38 C.F.R. § 4.85 and should include testing of pure tone criteria at 1,000, 2,000, 3,000, and 4,000 Hertz and speech recognition scores using the Maryland CNC Test. The objective findings and the Veteran’s subjective complaints should be recorded in detail. The VA audiologist must fully describe the functional effects caused by a hearing disability in the final report.

6. Then, readjudicate the claims on appeal, to include whether a separate rating for the service-connected thoracic spine disability is warranted prior to February 26, 2009 . If the benefits sought on appeal are not fully granted, issue a SSOC before returning the case to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. 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 38 U.S.C. §§ 5109B, 7112 (2012).

_________________________________________________
M. H. Hawley
Veterans Law Judge, Board of Veterans’ Appeals

Under 38 U.S.C. § 7252 (2012), 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) (2016).

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