Citation Nr: 0213145 Decision Date: 09/27/02 Archive Date: 10/03/02 DOCKET NO. 00-13 670A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to a disability rating in excess of 20 percent for a cervical spine disability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. L. Wight, Associate Counsel INTRODUCTION The veteran served on active duty from December 1966 to April 1967 and from March 1968 to November 1969. This case initially came before the Board of Veterans' Appeals (Board) by means of an October 1999 rating decision rendered by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA) that granted service connection for degenerative disc disease at the C6-7 level with traumatic arthritis of the cervical spine. A 20 percent disability rating was assigned effective from August 1994. The claims folder was subsequently transferred to the RO in No. Little Rock, Arkansas and the veteran appealed the initial disability evaluation assigned for his service- connected cervical spine disorder. In May 2001, the Board remanded the case to the RO for further development. Due to a recent regulatory change, further development at the RO is necessary. Where entitlement to compensation has already been established in a prior final rating action, an appellant's disagreement with a subsequent rating is a new claim for an "increased rating" based on the level of disability presently shown by the evidence. Suttman v. Brown, 5 Vet. App. 127, 136 (1993). However, a claim placed in appellate status by a disagreement with the original or initial rating award but not yet ultimately resolved, as with the rating for the veteran's service-connected cervical spine disability, remains an "original claim" and is not a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations must be assigned for separate period of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Id. at 126. Therefore, as shown on the title page, the Board does not characterize the issue of the proper rating for the veteran's service-connected cervical spine disability as an "increased rating." As an initial matter, in June 1994 the RO issued an administrative decision finding that the veteran's injuries to his cervical spine sustained in a November 1993 automobile accident were the result of his own willful misconduct. The veteran was informed of this decision and furnished with notice of his appellate rights. Thereafter, he filed a notice of disagreement to this decision in December 1994. The RO subsequently furnished him with a statement of the case addressing this issue in July 1996. However, the evidence does not show that the veteran perfected an appeal to the Board of the June 1994 RO administrative decision. In a September 2002 written brief, the veteran's representative argued that the veteran's injuries in 1993 were not due to misconduct. In support of this contention, additional evidence was received from the veteran and his private physician. As this constitutes a claim to reopen the administrative decision that found that the veteran's injuries sustained in a November 1993 automobile accident resulted from his willful conduct, the matter is referred to the RO for adjudication. The veteran's representative has also asserted that the claim for a disability rating in excess of 20 percent is inextricably intertwined with the issue of whether the injuries he sustained to his cervical spine in the 1993 automobile accident resulted from his willful misconduct. The Board agrees with this assertion and finds that the issue certified on appeal cannot be decided until the RO has adjudicated the veteran's claim to reopen the previous administrative decision of June 1994. Accordingly, the case must be remanded for the RO to adjudicate this new claim. REMAND In the present case, the veteran contends that his service- connected cervical spine disability is more severe than presently evaluated. For the reasons set forth below, the Board has determined that additional remand of this case is warranted. VA has a duty to assist to veterans and other claimants in the development of their claims. See Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100-5107 (West Supp. 2001). Additionally, VA has recently promulgated regulations implementing the VCAA. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The duty to assist requires VA to make "reasonable efforts to obtain relevant records (including private records)." 38 U.S.C.A.§ 5103A; 66 Fed. Reg. 45,620 45,630 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159(c)). A longitudinal review of the claims folder suggests that pertinent private medical evidence exists that is not presently associated with the claims folder. In particular, during a November 2001 VA examination, the veteran indicated that he was receiving private treatment for his cervical spine disabilities. It does not appear that these private treatment records are associated with the claims folder. As these records are potentially probative to the issue presented, they should be obtained. It is also noted that Dr. Craig N. Bash, a private physician, indicated in a December 2000 statement that he had been "treating [the veteran] for the past three years." Numerous statements have been received from Dr. Bash indicating that he has reviewed the veteran's medical records and history; however, actual clinical treatment records from Dr. Bash have not been received. As records of medical treatment are potentially probative to the issue presented, an effort should be made to obtain relevant clinical treatment records from Dr. Bash. In addition to the foregoing, the Board notes that the schedular criteria for evaluation of intervertebral disc syndrome were changed, effective September 23, 2002. 67 Fed. Reg. 54345-54349 (August 22, 2002) (to be codified as amended at 38 C.F.R. § 4.71a, Diagnostic Code 5293). Where a law or regulations changes after a claim has been filed or reopened, but before the administrative judicial process has been concluded, the version most favorable to an appellant applies unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary does so. Marcoux v. Brown, 9 Vet. App. 289 (1996); Karnas v. Derwinski, 1 Vet. App. 308 (1991). Because the revised regulations expressly stated an effective date and contained no provision for retroactive applicability, it is evident that the Secretary intended to apply those regulations only as of the effective date. See Allin v. Brown, 6 Vet. App. 207, 211 (1994). The legal obligation of VA to apply September 23, 2002, as the effective date of the revised regulations prevents the application, prior to that effective date, of the liberalizing law rule stated in Karnas. See 38 U.S.C.A. § 5110(g). This effective date rule prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law. See DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); see also McCay v. Brown, 9 Vet. App. 183, 187 (1996), aff'd, 106 F.3d 1577 (Fed. Cir. 1997). Accordingly, for any date prior to September 23, 2002, the revised intervertebral disc syndrome rating criteria may not be applied to this claim. The veteran should be furnished with the new rating criteria and allowed an opportunity to respond thereto. In accordance with the statutory duty to assist the veteran in the development of evidence pertinent to his claim, the case is REMANDED for the following actions: 1. The RO should obtain the names and addresses of all medical care providers who treated the veteran for his cervical spine disability since November 1993. The RO should obtain these records and associate them with the claims file. The Board is particularly interested in obtaining the clinical treatment records from Dr. Bash. 2. After the development requested above has been completed to the extent possible, the RO should then evaluate the veteran's service-connected cervical spine disability under both the old and the new rating criteria. If the benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case, to include the revised criteria for rating intervertebral disc syndrome, and given the opportunity to respond thereto. When the above actions have been completed, the case should be returned to the Board for further appellate consideration. By this action the Board intimates no opinion, legal or factual, as to the ultimate disposition warranted. The veteran 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 Supp. 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. 8.44- 8.45 and 38.02-38.03. GARY L. GICK Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 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) (2001).