Citation Nr: 0810250 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 04-20 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to increased rating for osteoarthritis, compression fracture of the D12, L1, and L2, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Lipstein, Associate Counsel INTRODUCTION The veteran served on active duty from October 1966 to January 1969. This matter comes to the Board of Veterans' Appeals (Board) from an April 2002 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in February 2003, a statement of the case was issued in May 2004, and a substantive appeal was received in June 2004. The veteran withdrew requests for hearings before the Board in June 2006 and September 2007. 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 A May 1969 RO decision granted service connection for residuals of a compression fracture of the D12, L1, and L2, and assigned a 10 percent disability rating effective January 16, 1969, under Diagnostic Code 5292. An April 2002 RO decision increased the disability rating to 20 percent for osteoarthritis, compression fracture of the D12, L1, and L2, effective December 7, 2000, under Diagnostic Code 5010-5293. The veteran testified in October 2006 that he was treated for his back about a year and a half before by a Dr. Storm, an arthritis and rheumatoid arthritis, osteoarthritis specialist. It does not appear that these records have been requested. Appropriate action is therefore necessary to fully assist the veteran. See generally 38 C.F.R. § 3.159. Moreover, although not entirely clear from the veteran's choice of language at the hearing, it appears that me may have indicated that his low back disability picture has become more severe since the most recent VA examination. In view of the need to return the case to the RO for action to obtain medical records identified by the veteran, the Board believes it reasonable to afford the veteran an opportunity to report for another VA examination. At this point the Board also recognizes a recent judicial holding to the effect that 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. 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. Accordingly, the case is REMANDED for the following actions: 1. The veteran should be furnished a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that is in compliance with the guidance set forth in Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). 2. The RO should take appropriate action to request all pertinent records from the Dr. Storm identified by the veteran at his October 2006 RO hearing. If such efforts prove unsuccessful, documentation to that effect should be added to the claims file. 3. The veteran should be scheduled for an appropriate VA examination to determine the severity of any current osteoarthritis, compression fracture of the D12, L1, and L2. It is imperative that the claims file be made available to the examiner for review in connection with the examination. All examination findings should be reported to allow for application of VA rating criteria. Range of motion should be reported together with the point (in degrees) at which motion may be limited by pain. Additional functional loss due to weakness, incoordination, and/or fatigue should also be reported. 4. After completion of the above, the RO should review the expanded record, and undertake a merits analysis of the claim of increased rating for osteoarthritis, compression fracture of the D12, L1, and L2. The veteran should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The veteran and his representative have the right to submit additional evidence and argument on the matter 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). _________________________________________________ ALAN S. PEEVY 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).