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).
