Citation Nr: 0810343 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-38 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for service-connected lumbar strain. 2. Entitlement to service connection for left knee with bone marrow edema, including as secondary to service-connected lumbar strain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Ahlstrom, Associate Counsel INTRODUCTION The veteran served on active duty from December 1965 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 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 Here, an October 2004 letter sent to the veteran mistakenly informed him that he currently had an appeal for an increased rating of his lumbar strain pending, and, as such, did not provide any information regarding increased ratings, including what the evidence must show to substantiate an increased rating claim, relevant diagnostic codes, or types of relevant evidence. The veteran was not provided with notice which satisfies the recent holding in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). The Board notes that the veteran submitted a notice of disagreement with the November 2001 rating decision that granted service connection for lumbar strain and assigned a noncompensable disability rating. During the course of that appeal, the veteran's disability rating was increased to 10 percent. The veteran continued to disagree with the 10 percent disability rating and a statement of the case (March 2003) and supplemental statement of the case (April 2003) were issued. However, the veteran did not file a substantive appeal within one year of the date of notice of the November 2001 rating decision, or within 60 days of the date of the supplemental statement of the case. Therefore, the November 2001 rating decision became final and the veteran did not have an appeal pending at the time he filed the current claim for an increased rating of his service-connected lumbar strain. Since a notification letter has not been issued with respect to the current increased rating claim on appeal, content compliant notice must be issued to the veteran. The veteran is also seeking service connection for a left knee disability. The veteran contends that his service- connected lumbar strain causes him to fall and that he has injured his left knee as a result of these falls. Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service- connected disease or injury. 38 C.F.R. § 3.310(a) (2007). The Court has held in that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service- connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The veteran underwent a VA examination in January 2005. At that examination, the veteran reported experiencing a fall in September 2004 that resulted in a hairline fracture of his left knee. The veteran did not report what caused this fall. The examiner opined that the veteran's left knee strain appeared "to be mild, aggravated by morbid obesity." The examiner did not offer an opinion as to whether the veteran's left knee disability was caused or aggravated by the veteran's service-connected lumbar strain. In his April 2005 notice of disagreement, the veteran reported that his back "went out" and caused him to fall and injure his left knee. Accordingly, another VA examination should be conducted on remand to determine whether the veteran's left knee disability was caused or aggravated by his service- connected lumbar strain. The veteran, through his representative, contends that medical treatment records from Sacred Heart Medical Center are necessary for a fair adjudication of the veteran's secondary service connection claim. The veteran should be requested to provide identifying information and authorization to obtain records from Sacred Heart Medical Center. Because these medical records may contain information pertinent to the veteran's claim for service connection for a left knee disability, they should be obtained. Accordingly, the case is REMANDED for the following action: 1. VA must review the entire file and ensure that all notification and development necessary to comply with 38 U.S.C.A. §§ 5103(a) and 5103A, and 38 C.F.R. § 3.159, as well as Vazquez- Flores, is conducted. The notification should address the veteran's claims for an increased rating and for service connection, to include the requirements imposed by Vazquez-Flores, and the requirements for direct service connection, secondary service connection, increased ratings and earlier effective dates. 2. Request that the veteran provide identifying information regarding any medical treatment obtained at Sacred Heart Medical Center and authorization to obtain medical records from this source. After securing the necessary authorization, request the veteran's medical records and associate them with the claims folder. 3. After the completion of the above, the AMC should schedule the veteran for a VA examination to determine the nature and etiology of the veteran's left knee disability. The examination should be conducted by the appropriate specialist to determine whether the left knee disability is due to or aggravated by the veteran's service- connected lumbar strain, as well as whether the left knee disability is directly due to service. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner. Specifically the examiner(s) is requested to provide an opinion as to (1) whether it is at least as likely as not that the veteran's service- connected lumbar strain caused or aggravated the veteran's left knee disability, and, if not, (2) whether it is at least as likely as not that the veteran's left knee disability began in service or was manifested within one year of his discharge from service. If the examiner is unable to form an opinion as to whether the veteran's service-connected lumbar strain caused or aggravated the veteran's left knee disability without resort to speculation, the examiner should note such a conclusion in the report. 4. Then, readjudicate the claims of entitlement to an increased rating for lumbar strain and service connection for a left knee disability. If the determination remains unfavorable to the veteran, the RO must issue a supplemental statement of the case and provide the veteran and his representative a reasonable period of time in which to respond before this case is returned to the Board. The veteran 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). _________________________________________________ J. A. MARKEY 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).