Veterans Medical Advisor

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                         Case from Bureau of Veterans Appeals

Dr. Bash is a veteran of


Citation Nr: 0940299

Decision Date: 10/23/09 | Archive Date: 10/30/09

DOCKET NO. 07-11 745

On appeal from the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama

THE ISSUES

1. Entitlement to an initial rating in excess of 20 percent for an injury to the right brachial plexus.

2. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or on account of being housebound.

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

REPRESENTATION

Veteran represented by: Sean A. Ravin, Attorney at Law

ATTORNEY FOR THE BOARD

A. Jaeger, Counsel

INTRODUCTION

The Veteran served on active duty from April 1966 to January 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decisions issued in June 2006 and September 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

The appeal is REMANDED to the VA RO. VA will notify the Veteran if further action is required.

REMAND

The Veteran contends that his right brachial plexus disability is more severe than the currently assigned rating and results in the loss of use of his right hand. He also alleges that his service-connected disabilities render him unemployable and necessitate the regular aid and attendance of another person and/or render him housebound.

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). With respect to his SMC claim, the Veteran has not been provided notice of the information and evidence necessary to establish an effective date for such claim, in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Therefore, while on remand, the Veteran should be provided with proper VCAA notice.

The Board further finds that a remand is necessary in order to afford the Veteran contemporaneous VA examinations so as to determine the current nature and severity of his right brachial plexus disability and whether his service-connected disabilities render him unemployable and necessitate the regular aid and attendance of another person or render him housebound.

In regard to the Veteran's initial rating claim, the Board observes that he was provided with a VA examination in February 2006 in order to adjudicate his underlying service connection claim. However, as noted by the Veteran's attorney in his June 2009 Brief, while the examiner offered an opinion with respect to the etiology of the Veteran's right brachial plexus disability, he did not provide an adequate assessment regarding the severity of such disability. Moreover, the Veteran's attorney has also alleged that the Veteran's right brachial plexus disability results in the loss of use of his right hand. Therefore, the Veteran should be provided with a VA examination in order to determine the current nature and severity of his right brachial plexus disability.

The Board also concludes that the Veteran should be afforded an appropriate VA examination so as to determine whether his service-connected disabilities render him unemployable. In this regard, the Board notes that he has not been provided with a VA examination with respect to his TDIU claim. The Board also observes that the Veteran is service-connected for a gunshot wound with a compound fracture of the upper third of the left humerus with mild limitation of motion, keloid scar formation, and some muscle loss, evaluated as 30 percent disabling; injury of the right brachial plexus, evaluated as 20 percent disabling; and left ulnar neuropathy with partial paresis of the left musculocutaneous nerve, evaluated as 20 percent disabling. The Veteran's combined disability evaluation is 60 percent. Social Security Administration (SSA) records show that the Veteran has been in receipt of SSA disability benefits since January 1991 for status post- brachial plexus stretch injury to the right arm as a primary diagnosis and an old injury to the left shoulder as a secondary diagnosis. While SSA has found the Veteran to be disabled within the meaning of its applicable law, these findings are relevant, but not necessarily binding on VA. Holland v. Brown, 6 Vet. App. 443 (1994). Additionally, at an April 2005 Board hearing on another matter, a private neuroradiologist, Dr. Bash, testified that the Veteran's injuries of his left and right arms make it difficult for him to work. Therefore, a remand is necessary in order to afford the Veteran an appropriate VA examination so as to determine the impact his service-connected disabilities have on his employability. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994).

The Board further notes that the Veteran has not been afforded a VA examination with respect to his SMC claim. Therefore, the Board finds that the Veteran should be afforded an appropriate VA examination so as to determine whether his service-connected disabilities necessitate the regular aid and attendance of another person and/or render him housebound.

Additionally, the Board observes that the Veteran was assigned an initial 20 percent rating for his right brachial plexus disability, effective October 23, 1991. Contained in the claims file are records dated in 1991, 1996, from 1998 to 2000, and from 2006 to 2007. The Board notes that, in an April 2001 document, the Veteran indicated that he had received treatment at the Birmingham VA Medical Center from 1991 to the present. As such, while on remand, the Veteran should be requested to identify any outstanding, relevant treatment records pertinent to his right brachial plexus disability dated from October 23, 1991, to the present. Thereafter, such records, as well as those from the Birmingham VA Medical Center dated from 1991 to the present, should be obtained.

Accordingly, the case is REMANDED for the following action:

1. Relevant to his SMC claim, the Veteran should be provided with proper VCAA notice that informs him of the evidence and information necessary to establish an effective date in accordance with Dingess/Hartman, supra.

2. Request that the Veteran identify any outstanding, relevant treatment records pertinent to his right brachial plexus disability dated from October 23, 1991, to the present. After securing any necessary authorization forms, obtain all identified records, to specifically include those from the Birmingham VA Medical Center dated from 1991 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).

3. After completing the above, the Veteran should be afforded an appropriate VA examination in order to determine the current nature and severity of his right brachial plexus disability. The claims file must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted.

The examiner should indicate whether the Veteran is left-hand or right-hand dominant and identify the nature and severity of all current manifestations of his service-connected right brachial plexus disability, to include the degree of paralysis caused by such (i.e., mild, moderate, or severe incomplete paralysis; or complete paralysis). The examiner should also indicate whether the Veteran's right brachial plexus disability results in the loss of use of his right hand (i.e., when no effective function remains other than that which would be equally well served by an amputation). All opinions expressed should be accompanied by supporting rationale.

4. After completing the above, the Veteran should be afforded an appropriate VA examination in order to determine the impact his service-connected disabilities of a gunshot wound with a compound fracture of the upper third of the left humerus with mild limitation of motion, keloid scar formation, and some muscle loss; injury of the right brachial plexus; and left ulnar neuropathy with partial paresis of the left musculocutaneous nerve have on his employability. The claims file must be made available to the examiner for review. Any indicated evaluations, studies, and tests should be conducted.

The examiner should offer an opinion regarding whether it is at least as likely as not that the Veteran's service- connected disabilities, either singularly or jointly, render him unable to secure and follow substantially gainful employment. If the examiner determines that he cannot offer an opinion on the Veteran's employability without a Social and Industrial Survey, such should be performed. All opinions expressed should be accompanied by supporting rationale.

5. After completing the above, the Veteran should be afforded an appropriate VA examination in order to determine whether his service-connected disabilities necessitate the regular aid and attendance of another person or render him housebound. The claims file must be made available to the examiner for review. Any indicated evaluations, studies, and tests should be conducted.

The examiner should state an opinion as to whether the Veteran's service-connected disabilities, either singularly or jointly, necessitate the regular aid and attendance of another person (in other words, that he is helpless or is so nearly helpless as to require the regular aid and attendance of another person). The criteria for establishing the need for aid and attendance include consideration of whether the Veteran is blind or is so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or whether he is a patient in a nursing home because of mental or physical incapacity; or whether he establishes a factual need for aid and attendance under the criteria set forth under 38 C.F.R. § 3.352(a), to include the inability to dress/undress, or to keep ordinarily clean/presentable; frequent adjustment of special prosthetic/orthopedic appliances requiring the aid of another; inability to feed herself; inability to attend to wants of nature; or incapacity, physical or mental, that requires assistance on a regular basis to protect from hazards/dangers incident to daily environment.

The examiner must also state whether the Veteran's service-connected disabilities, either singularly or jointly, render him permanently housebound, i.e., substantially confined to his dwelling or immediate premises, or if institutionalized, to the ward or clinical areas.

All opinions expressed should be accompanied by supporting rationale.

6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations.

The purpose of the examinations requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2008) failure to cooperate by attending the requested VA examinations may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991).

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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.A. §§ 5109B, 7112 (West Supp. 2009).




C. TRUEBA

Veterans Law Judge, Board of Veterans' Appeals



Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).



Department of Veterans Affairs

drbash@doctor.com

______________________

Craig N. Bash M.D., M.B.A.

Neuro-Radiologist and Associate Professor

Uniformed Services School of Medicine

NPI/UPIN-1225123318

4938 Hampden Lane
Bethesda, Md 20814

Cell/Text 240-506-1556
Fax 301-951-9106