Citation Nr: 0809712 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 05-27 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an increased evaluation for status post dislocation and fracture of the femoral head of the right hip with marked limitation of motion, internal fixation, and traumatic arthritis, currently assigned a 30 percent disability evaluation. 2. Entitlement to an increased evaluation for status post open comminuted fracture of the left femur, currently assigned a 10 percent disability evaluation. 3. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jessica J. Wills, Associate Counsel INTRODUCTION The veteran served on active duty from November 1975 to September 1976. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from November 2004 and July 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied the benefits sought on appeal. The veteran appealed those decisions to BVA, and the case was referred to the Board for appellate review. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Reason for remand: To provide the veteran with proper notice and to notify him of the pertinent rating criteria. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In the present appeal, the veteran was not provided with notice of the type of evidence necessary to establish a disability rating or an effective date. As those questions are involved in the present appeal, this case must be remanded for proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the type of evidence that is needed to establish a disability rating and an effective date. The Court also issued a decision in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008), which held that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify 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 of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g. competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. However, in this case, the Board notes that the veteran has not been adequately provided such notice, and thus, the case must also be remanded for proper notice pursuant to Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). Moreover, the veteran is currently assigned a 30 percent disability evaluation for his right femur disability and a 10 percent disability evaluation for his left femur disability pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5255 and 38 C.F.R. § 4.73, Diagnostic Codes 5255-5314, respectively. The July 2005 statement of the case (SOC) did provide the veteran with the rating criteria under Diagnostic Codes 5255 and 5313. However, the SOC did not contain Diagnostic Codes 5010 or 5314. Nor was he advised of the factors to be considered in evaluating disabilities residual to healed wounds involving muscle groups as set forth in 38 C.F.R. §§ 4.55, 4.56. Therefore, the RO should notify the veteran of the pertinent rating criteria for the disabilities currently on appeal. The Board further notes that a decision on the claims for an increased evaluation could change the outcome of the veteran's claim for TDIU. As such, the increased evaluation claims are inextricably intertwined with the TDIU claim currently on appeal. For this reason, the issues of entitlement to an increased evaluation for his right and left femur disabilities must be resolved prior to resolution of the TDIU issue. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, a remand is required for the RO to adjudicate the inextricably intertwined issue. Therefore, in order to give the veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following actions: 1. The RO should send the veteran a notice letter in connection with his claims for an increased evaluation and for TDIU. The letter should (1) inform him of the information and evidence that is necessary to substantiate the claims; (2) inform him about the information and evidence that VA will seek to provide; (3) inform him about the information and evidence he is expected to provide; and (4) ask him to provide any evidence in his possession that pertains to the claims. The letter should also include an explanation as to the information or evidence needed to establish a disability rating and an effective date, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, the letter should tell the claimant to provide medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. If the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the RO should provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. See Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). 2. After completing these actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the action taken in the preceding paragraphs. Further development may include affording the veteran another VA examination, if he submits additional information and evidence that shows his disabilities may have increased in severity since his last VA examinations. 3. When the development has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should set forth all applicable laws and regulations pertaining to each issue, including 38 C.F.R. §§ 4.55, 4.56 and Diagnostic Codes 5010 and 5314. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant unless he is notified. _________________________________________________ KATHLEEN K. GALLAGHER 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).