Citation Nr: 0518860 Decision Date: 07/12/05 Archive Date: 07/20/05 DOCKET NO. 03-10 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased rating for osteoarthritis of the bilateral hands and right knee (previously classified as arthralgia, migratory rheumatoid), currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Eric S. Leboff, Associate Counsel INTRODUCTION The veteran had active service from April 1943 until November 1945 and from May 1951 until February 1952. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 2002 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Chicago, Illinois. This matter was previously before the Board in June 2004. At that time, a remand was ordered to accomplish additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND On November 9, 2000, the President signed into law the Veterans Claims Assistance Act (VCAA). This new law eliminates the concept of a well-grounded claim, and redefines the obligations of the VA with respect to the duties to notify and to assist claimants in the development of their claims. First, the VA has a duty to notify the appellant and his representative, if represented, of any information and evidence needed to substantiate and complete a claim. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002). In this regard, VA will inform the appellant of which information and evidence, if any, that he is to provide and which information and evidence, if any, VA will attempt to obtain on his behalf. VA will also request that the appellant provide any evidence in his possession that pertains to the claim. Second, the VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. See 38 U.S.C.A. § 5103A. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002), 38 U.S.C.A. § 5103. Following a careful review of the claims file, the Board regrettably determines that a remand is necessary prior to adjudication of the appeal. Indeed, it is noted that, per the Board's remand instructions in June 2004, the RO was to send the veteran a notice letter apprising him of the information and evidence needed to substantiate his increased rating claim. That June 2004 remand observed that the veteran had incorrectly received VCAA notice as to service connection, when a letter addressing his increased rating claim was required. Following the June 2004 Board remand, the RO sent the veteran another VCAA notice letter later that month. However, that letter replicated the error of previous communications in that it again provided the criteria for establishing service connection. The veteran is already service-connected for his osteoarthritis of the bilateral hands and right knee. His claim is that of entitlement to an increased rating. Because the June 2004 notice letter failed to discuss the specific claim on appeal, proper notice under the VCAA and Quartuccio has not been afforded. The Board notes that the issue on appeal has been the subject of an earlier remand. However, for the reasons articulated above, a remand is simply unavoidable here. Indeed, the Board is obligated by law to ensure that the RO complies with its directives. "[A] remand by . . . the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders." In other words, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, this case is REMANDED to the RO for the following actions: 1. Issue a VCAA notice letter which satisfies all VCAA notice obligations in accordance with Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002), 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), 38 C.F.R. § 3.159, and any other applicable legal precedent. Such notice should specifically apprise the appellant of the evidence and information necessary to substantiate his claim of entitlement to an increased rating for osteoarthritis of the bilateral hands and right knee (previously arthralgia, migratory rheumatoid arthritis) and inform him of which information and evidence, if any, that he is to provide and which information and evidence, if any, VA will attempt to obtain on his behalf. Such letter should not list the elements of a service connection claim but rather should specifically address the issue on appeal, entitlement to an increased rating. The veteran should also be advised to send to VA all evidence in his possession which pertains to the appeal. 2. If any additional evidence is received, then the RO must readjudicate the issue on appeal, to include whether separate compensable ratings are warranted for each affected joint. The RO must consider all evidence received since issuance of the most recent Supplemental Statement of the Case. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ U. R. POWELL 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) (2004). Department of Veterans Affairs