Citation Nr: 0810236 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 02-08 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for low back strain. 2. Entitlement to a disability rating in excess of 30 percent for residuals of a meniscectomy of the left knee with traumatic arthritis. 3. Entitlement to service connection for right arm, bilateral ankles, and bilateral hips disabilities. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The veteran had active duty service from August 1961 to December 1981. This appeal was initially before the Board of Veterans' Appeals (Board) from a December 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for right arm, bilateral ankles, and bilateral hips disabilities and also denied ratings in excess of 10 percent for low back strain with arthritic changes and 30 percent for residuals of a meniscectomy of the left knee with traumatic arthritis. In a November 2002 rating decision, the RO granted entitlement to a 10 percent rating for low back strain with arthritic changes, effective June 18, 2001. Nonetheless, the issue of entitlement to an increased evaluation for low back strain remains before the Board on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In October 2003 and August 2005, the Board remanded these matters to the RO via the Appeals Management Center (AMC) for additional development. Additional development has been accomplished and the case has been returned to the Board for further appellate consideration. As mentioned in the prior remands, the RO should determine if the veteran is raising a claim of entitlement to service connection for a breathing disorder. If so, any action necessary should be undertaken. In addition, the Board notes that in May 1996, the veteran raised the claim of entitlement to service connection for bursitis. This matter was not subsequently addressed by the RO. It appears that there is a prior rating March 1982 decision which addressed this issue. These matters are again referred to the RO for appropriate action. 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 As an initial matter, the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court, are applicable to these matters. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. The Court also recently issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concerning increased- compensation claims and finding that 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. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 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. See Vazquez-Flores, slip op. at 5-6. Unfortunately, the veteran did not receive adequate notice of information concerning the VCAA in reference to the issues on appeal. As the case is being remanded for additional development, appropriate action should be taken to ensure adequate VCAA notice as to the type of evidence necessary to substantiate the veteran's claims for service connection and for increased ratings is provided. In this case, correspondence received from the veteran in October 2006 and March 2007 indicates he was awarded entitlement to Social Security Administration (SSA) disability benefits which appear to be based in part on his service-connected back and left knee disabilities. The Court has held that where there is notice the veteran is receiving SSA disability benefits VA has a duty to acquire a copy of the decision granting such benefits and the supporting medical documents. See Murincsak v. Derwinski, 2 Vet. App. 363, 372- 3 (1992). Although VA is not obligated to follow a determination made by SSA, these records may be relevant to the matters on appeal. The Board notes that the veteran has failed to report to numerous VA examinations scheduled during the course of his appeal. However, the record indicates that the veteran was scheduled for VA spine and joints examinations in October 2007 to assess the severity of his service-connected low back and left knee disabilities. In view of the veteran's October 2007 request to reschedule the October 2007 VA examinations and as the case is already being remanded for additional development, the veteran should be afforded one more opportunity for a medical examination. VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if the VA determines it is necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4) (2007). Accordingly, the AMC/RO should arrange for the veteran to undergo a VA orthopedic examination(s) at an appropriate VA medical facility to determine the severity of his service-connected back and left knee disabilities. The appellant is hereby notified that it is his responsibility to report for any examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2007); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that the VA's duty to assist the veteran is not a one-way street; the veteran also has an obligation to assist in the adjudication of his claim). Accordingly, in view of the foregoing discussion, the case is REMANDED for the following actions: 1. The AMC/RO is to provide the veteran VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to substantiate his service connection and increased rating claims on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. The AMC/RO should contact the veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the veteran for his claimed right arm, bilateral hip, and bilateral ankle disabilities as well as his service-connected left knee and low back disabilities since service. After the veteran has signed the appropriate releases, those records not already associated with the claims folder, should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file. The veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 3. Appropriate efforts should be taken to obtain a complete copy of the veteran's Social Security Administration disability determination with all associated medical records. 4. Once the foregoing development has been accomplished to the extent possible, the AMC/RO should schedule the veteran for VA orthopedic examination(s) to determine the current severity of his service-connected low back and left knee disabilities. Prior to any scheduled examination(s), the claims folder and a copy of this remand must be made available and reviewed by to the physician conducting the examination for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. All appropriate tests, studies (to include X-rays) and/or consultations should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. With respect to the low back and the left knee, the examiner should also indicate whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with any affected joint. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, after considering the veteran's documented medical history and assertions, the examining physician should indicate whether, and to what extent, the veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. 5. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 6. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought on appeal remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ RENÉE M. PELLETIER 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).