Citation Nr: 0810272 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-03 507A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for degenerative disc/joint disease, cervical spine. 2. Entitlement to an initial disability rating in excess of 50 percent for major depressive disorder. 3. Entitlement to an initial disability rating in excess of 10 percent for mixed connective tissue/interstitial lung disease. 4. Entitlement to an initial compensable disability rating for bilateral pes planus. 5. Entitlement to an initial compensable disability rating for keloid scar, left shoulder, residual excision of lipoma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Rose, Counsel INTRODUCTION The veteran had active military service for more than 24 years. This matter comes before the Board of Veterans' Appeals (Board) from a February 2004 rating decision of the Department of Veterans Affairs (VA), Roanoke, Virginia, regional office (RO), which granted service connection for degenerative disc/joint disease, cervical spine, major depressive disorder, mixed connective tissue/interstitial lung disease, bilateral pes planus, and keloid scar, left shoulder, residual excision of lipoma. During the course of this appeal, the claims folder was transferred to the San Juan, Puerto Rico, RO. In a May 2007 RO decision, the veteran's service-connected major depressive disorder was increased from 10 to 50 percent, effective January 1, 2004. 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 The record shows that the veteran is appealing the initial disability ratings assigned from the February 2004 rating decision. During the course of the appeal, significant cases were issued regarding adequate VCAA notice for increased rating claims such as the veteran's claims on appeal. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006). In this case, however, the veteran was not provided notice of the underlying service connection claims. Thus, VA's duty to notify in this case has not been satisfied. In Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008), the Court determined 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. The Board notes that no VCAA letter was issued by the RO to the veteran regarding his increased rating claims, let alone a letter addressing the crucial point regarding the effect that the worsening of the veteran's disability has had on his employment and daily life. 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. Further, where as here, an increase in disability rating requires a certain test result, specifically medical evidence of certain measurements of visual acuity, notice of that specific criteria should be provided. Notice of this kind was not provided to the veteran. See Vazquez-Flores, slip op. at 5- 6. The tenor of the veteran's submissions to VA on this matter do not reflect actual knowledge such that additional notice would not be required relative to his increased rating claims. Cf. Vazquez-Flores, slip op. at 12, citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). Notice should be provided on remand Accordingly, the case is REMANDED for the following action: 1. AMC should send the veteran VCAA notice. Such notice should include an explanation as to the information or evidence needed to establish entitlement to increased disability ratings and effective dates, as outlined by the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), and Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). 2. Thereafter, the AMC should readjudicate the veteran's claims. If any of the benefits sought on appeal is not granted, the veteran and his representative should be issued a Supplemental Statement of the Case, which should include all pertinent laws and regulations, and be afforded a reasonable opportunity to reply thereto. 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). _________________________________________________ MARJORIE A. AUER 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) (2006).