Citation Nr: 0809659 Decision Date: 03/21/08 Archive Date: 04/03/08 DOCKET NO. 96-11 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased disability rating for service- connected chronic lumbosacral strain, currently rated as 20 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The veteran served on active duty from May 1983 to August 1991. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an August 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (the RO). Procedural history In a June 1992 rating decision, service connection was granted for lumbosacral strain effective September 1, 1991; a 10 percent disability rating was assigned. In the August 1995 rating decision, a 20 percent disability rating was assigned effective February 21, 1995. The veteran perfected an appeal as to the assignment of the 20 percent disability rating. In February 2002, the veteran and his spouse testified a videoconference hearing held before a Veterans Law Judge who is no longer employed at the Board. A transcript of that hearing has been associated with the veteran's claims file. In May 2003 and November 2004, the Board remanded this claim for further development. In January 2007, the Board afforded the veteran another hearing opportunity. In February 2007, the veteran indicated that he wanted a Travel Board hearing. In March 2007, the Board remanded the veteran's claim to schedule him for a Travel Board hearing. In January 2008, the veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. Issues not on appeal In a June 2002 decision, the Board denied service connection for a chronic acquired psychiatric disorder, generalized osteoarthritis of the hips, and a bilateral leg disorder. In a November 2004 decision, the Board denied increased ratings for bilateral hearing loss, vitiligo, and traumatic arthritis of the right knee, and granted a 20 percent disability rating for a right knee anterior cruciate ligament tear. Those issues have therefore been resolved. See 38 C.F.R. § 20.1100 (2007). In an October 2006 RO rating decision, service connection was denied for post-traumatic stress disorder (PTSD). To the Board's knowledge, the veteran has not disagreed with that determination. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. REMAND For reasons expressed immediately below, the Board believes that the issue on appeal must be again remanded for further procedural and evidentiary development. Reasons for remand Additional notice under the Veterans Claims Assistance Act of 2000 (VCAA) While the RO provided notice as to as to Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) in September 2006, in light of the subsequent United States Court of Appeals for Veterans Claims (the Court) decision in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. Jan. 30, 2008), more detailed notice must be provided. The Court in Vazquez-Flores held that a notice letter must inform the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity and the effect that worsening has on the claimant's employment and daily life. The September 2006 notice letter - and the earlier August 2003 and January 2005 VCAA letters - did not satisfy that requirement. Also, the veteran is rated under a Diagnostic Code which requires specific measurements as to limitation of lumbar spine motion. The notice letters did not provide at least general notice of that requirement. VA examination At the January 2008 hearing, the veteran testified that his lumbar spine disability has worsened over the last year or two. See Transcript, page 11. The veteran also said that he last underwent X-rays of the lumbar spine about a year ago. See id. at 10. The veteran, however, underwent X-rays of the lumbar spine at his June 2007 VA examination. Therefore, it appears that the veteran is alleging that his service-connected lumbar spine disability has worsened since the date of the June 2007 VA examination. Moreover, the report of the June 2007 VA examination reflects diagnoses of arthritis and degenerative disc disease of the lumbar spine with radiculopathy of the left lower extremity. It is unclear whether symptomatology from such disorders is attributable to the service-connected lumbar spine disability. Under the circumstances here presented, the Board believes that a medical examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997) [a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination]. The Board notes that in its November 2004 remand it directed the RO to arrange for a VA examination with very extensive instructions for the examiner. The Board has determined that the examination instructions should be limited to those in the relevant action paragraph below. VA medical records The veteran testified that he continues to receive treatment at the VA Medical Center in El Paso, Texas. See the hearing transcript, pages 3-5. The last request from that facility was completed in October 2006. Additional records from that facility should be obtained. Accordingly, this case is remanded to the Veterans Benefits Administration (VBA) for the following actions: 1. VCAA notice pursuant to Vazquez- Flores v. Peake, No. 05-0355 (U.S. Vet. App. Jan. 30, 2008) should be furnished to the veteran, with a copy to his representative. 2. VBA should attempt to obtain records pertaining to the veteran from the El Paso, Texas VAMC from October 2006 to the present. Any treatment records so obtained should be associated with the veteran's claims file. 3. VBA must arrange for the veteran to undergo a physical examination to determine the nature of his service- connected lumbar spine disability. The examiner should determine whether the veteran's arthritis of the lumbar spine and degenerative disc disease of the lower extremities with radiculopathy of the left lower extremity are a part of his service-connected lumbar spine disability, originally diagnosed as lumbosacral strain. The report of the physical examination should be associated with the veteran's VA claims folder. 4. After the development requested above has been completed to the extent possible, and after undertaking any additional development it deems necessary, VBA should then review the record and readjudicate the veteran's claim. If the decision remains unfavorable to the veteran, a supplemental statement of the case (SSOC) should be prepared. The veteran and his representative should be provided with the SSOC and an appropriate period of time should be allowed for response. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ Barry F. Bohan 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) (2007).