Citation Nr: 0328852 Decision Date: 10/24/03 Archive Date: 11/04/03 DOCKET NO. 99-23 971A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for multiple joint pain, to include the right shoulder, heels, and hands. 2. Entitlement to an initial evaluation for service- connected degenerative changes, lumbosacral spine, in excess of 40 percent disabling. 3. Entitlement to an increased evaluation for service- connected right knee patellofemoral syndrome, evaluated as 30 percent disabling prior to July 1, 2003, and evaluated as 10 percent disabling from July 1, 2003. 4. Entitlement to an increased evaluation for service- connected left knee patellofemoral syndrome, currently evaluated as 10 percent disabling. 5. Entitlement to an initial compensable evaluation for service-connected hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from March 1991 to July 1994. This claim comes before the Board of Veterans' Appeals (Board) on appeal from a September 1998 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). That rating decision, which was issued to the veteran in October 1998, denied a claim for service connection for multiple joint pain, granted service connection for hypertension and assigned a noncompensable initial evaluation for that disability, granted an increased (compensable) 10 percent evaluation for a left knee disability, granted service connection for degenerative changes of the lumbosacral spine and assigned a 40 percent initial evaluation, and denied an evaluation in excess of 30 percent for a right knee disability. The veteran timely disagreed with those determinations, and in December 1999, the RO issued a statement of the case (SOC). The veteran submitted a timely substantive appeal in December 1999. In January 2003, the RO proposed to reduce the evaluation assigned for right knee disability from 30 percent to 10 percent, and that proposal was implemented by a rating decision prepared in April 2003, effective July 1, 2003. The record before the Board does not reflect that the veteran has disagreed with this rating reduction, although the time allowed for timely disagreement has not yet expired. During the pendency of these appeals, the RO denied claims of entitlement to service connection for tinea cruris, dermatitis of the right thigh, stomach problems, a scar, left upper arm, and residuals of mole removal of the left side of the neck. The veteran has not disagreed with the denials of these claims, and those issues are not before the Board at this time. REMAND In the present case, the Board finds that all records necessary to decide the issues on appeal have not been obtained. Specifically, all pertinent records from Dr. Proffitt, Arthritis Associates, and Chattanooga Internal Medicine Group should be obtained, as well as any additional outstanding VA or private treatment records. Subsequent to the RO's decisions in this case, the United States Court of Appeals for Veterans Claims and the United States Court of Appeals for the Federal Circuit have determined that a claimant must be provided with explicit notice of enactment of the VCAA and all provisions of that Act, and of the veteran's rights and responsibilities, and that explicit notice as to the time allowed for submission of evidence must be provided to the claimant. E.g., Disabled American Veterans, et. al. v. Secretary of Department of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). See also Paralyzed Veterans of America, et. al. v. Secretary of Department of Veterans Affairs (PVA), Nos. 02-7007, -7008, - 7009, -7010 (Fed. Cir. Sept. 22, 2003). Review of the record reveals that such notification was provided in July 2003, less than one year ago. In Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02-7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003), the United States Court of Appeals for the Federal Circuit invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1). The Federal Circuit Court made a conclusion similar to the one reached in Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The Federal Circuit Court found that the 30-day period provided in § 3.159(b)(1) to respond to a VCCA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. Therefore, since this case is being remanded for additional development or to cure a procedural defect, the RO must take this opportunity to inform the appellant that notwithstanding the information previously provided, a full year is allowed to respond to a VCAA notice. The Board also notes that, during the pendency of the veteran's appeal, the criteria used to evaluate degenerative disc disease, 38 C.F.R. § 4.71a, Diagnostic Code 5293, the regulation governing evaluation of disc disease, were revised, effective September 23, 2002. See 67 Fed. Reg. 54,345-54,349 (August 22, 2002). The criteria governing evaluation of the spine were revised, effective September 26, 2003, with Diagnostic Code 5293 renumbered and revised at 38 C.F.R. § 4.71a, Diagnostic Code 5243. See 68 Fed. Reg. 51,454-51,456 (August 27, 2003). Although the veteran's lumbosacral spine disability is currently evaluated based on limitation of motion, under 38 C.F.R. § 4.71a, Diagnostic Code 5242 (formerly, Diagnostic Code 5292), the veteran is seeking an evaluation in excess of 40 percent, and if the RO concludes that consideration of a rating under Diagnostic Code 5293 is appropriate, the veteran should be notified of the applicable criteria, including as revised. In any event, the recent changes to the criteria for rating the spine must be provided to the veteran. Accordingly, the case is remanded for the following action: 1. The veteran should be specifically advised of the enactment of the VCAA, of the evidence required to substantiate his claims for service connection and for increased evaluations, including notification as to the diagnostic codes applicable to the claims for increased evaluations, and the criteria for higher evaluations under each applicable Diagnostic Code. The veteran should again be advised of his responsibilities under the Act, and of VA's duties and responsibilities. The veteran should be specifically advised of the period of time in which he may timely submit or identify evidence which might substantiate his claims. 2. The RO should afford the veteran another opportunity to submit alternative evidence regarding the disabilities at issue, and advise the veteran of the types of alternative evidence which might assist in substantiating the claims. 3. The veteran should be asked if he has been treated at any VA Medical Center (VAMC) other than the Chattanooga, Tennessee, VA outpatient clinic for his service-connected disabilities or for multiple joint pain. The veteran's treatment records from the Chattanooga VA outpatient clinic from February 2002, and any VA examination reports subsequent to May 2003, should be obtained. Clinical records should be obtained from any identified VAMC other than Chattanooga. 4. The veteran should be afforded the opportunity to identify any other private (non-VA) providers or facilities from whom or at which he has been treated for multiple joint pain or for the service- connected disabilities at issue (lumbosacral spine, right and left knee disability, and hypertension) other than the records already associated with the claims file, which include the 1995 treatment records of Dr. Proffitt, Arthritis Associates records dated from May 1997 to April 1998, and of Chattanooga Internal Medicine Group from October 1998 to February 2000. An attempt should be made to obtain any identified records. 5. If the veteran contends that any service-connected disability has increased in severity since the last examination of record, appropriate examination should be afforded. 6. The veteran should be afforded VA examination of the right shoulder, heels, and hands, and of any joint which the veteran contends is painful (with the exception of joints as to which service connection has been granted for each disorder present). The claims folder should be sent to the examiner for review. The examiner should review pertinent service medical records and clinical records. The examiner should determine the diagnosis applicable to each joint and whether there is multiple joint pain of the claimed joints. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., is there at least a 50 percent probability) that the veteran has multiple joint pain as the result of his active military service or any incident therein, and, if the veteran does have multiple joint pain, the examiner should specify what joints are affected. The examiner should state the basis (rationale) for the conclusions reached. 7. After completing development, including any actions in addition to those specified above to satisfy the VCAA, the RO should readjudicate the issues on appeal. If the decision remains adverse to the veteran, the veteran and his representative should be provided a supplemental statement of the case (SSOC). After the appropriate period of time for response, the case should be returned to the Board for final review. 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 2002) (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. 8.43 and 38.02. _________________________________________________ BARBARA B. COPELAND 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) (2002).