Citation Nr: 0810599 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 97-33 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to a rating in excess of 40 percent for chronic recurrent low back strain. REPRESENTATION Appellant represented by: Francis M. Jackson, Attorney ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from December 1973 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") on November 6, 2007, which vacated a March 2006 Board decision and remanded the case for additional development. The issue initially arose from a May 2001 rating decision by the Togus, Maine, Regional Office (RO) of the Department of Veterans Affairs (VA), which established service connection for chronic recurrent low back strain. It is significant to note that the Court, by incorporating the terms of a joint motion for remand, requested that VA determine whether the appellant had withdrawn a claim for lumbar disc disease. A review of the record shows that in a May 2001 rating decision the RO granted service connection for chronic recurrent low back strain, but found lumbar disc disease and hypertrophic arthritis of the spine were a separate and distinct back disorder unrelated to military service. This matter was neither listed as a separate issue nor adjudicated as such in the May 2001 rating decision. In a July 23, 2001, response to a May 2001 supplemental statement of the case addressing the issue of entitlement to service connection for lumbar disc disease the veteran's attorney stated the veteran did not have a pending claim for lumbar disc disease, but that there would be no objection if one were to be opened. In correspondence dated October 25, 2001, the RO notified the veteran of the award of service connection for recurrent low back strain and the assignment of a 40 percent rating. In correspondence dated August 13, 2002, the veteran's attorney expressed disagreement from the "October 25, 2001" decision approving a 40 percent rating and also asserted that a 60 percent was warranted. In a February 19, 2003, supplemental statement of the case the RO addressed the issues of entitlement to service connection for lumbar disc disease and entitlement to a rating in excess of 40 percent for recurrent low back strain. In correspondence dated April 14, 2003, the veteran's attorney noted that "[a]s stated in the Notice of disagreement received in of August 13, 2002 we wish to continue the appeal of that claim which is directly related to his in-service injury of September 1975." In remand orders dated in June 2003 and September 2004 the Board interpreted the April 14, 2003, correspondence as only pursuing the initial rating for the service-connected chronic recurrent low back strain. The Board, in essence, also found the issue of entitlement to service connection for lumbar disc disease had not remained on appeal from an August 1997 rating decision and that the February 2003 supplemental statement of the case indicating so was contrary to VA law. In correspondence dated May 3, 2004, the RO requested the veteran clarify if he was seeking service connection for a back disability other than lumbar strain. There is no evidence of a response from the veteran or his attorney addressing this request. The issue of entitlement to service connection for lumbar disc disease was not subsequently addressed by the RO. The Board now finds that the August 13, 2002, and April 14, 2003, statements of the veteran's attorney are more appropriately interpreted as expressions of disagreement from the assigned rating for recurrent low back strain for which the veteran was notified by correspondence dated October 25, 2001. See 38 C.F.R. §§ 20.200, 20.201 (2007). The veteran was not notified of a separate service connection determination by the October 25, 2001, correspondence the veteran's attorney referred to in the August 13, 2002, notice of disagreement. There is no reference to the May 2001 rating decision or supplemental statement of the case in either the August 13, 2002, or April 14, 2003, correspondence. There is no correspondence of record that may be construed as a timely notice of disagreement from the May 2001 rating decision to the extent it denied service connection for lumbar disc disease. This issue is not presently within the Board's jurisdiction. The Board finds, however, that statements of record may be construed as raising a claim for entitlement to service connection for lumbar disc disease. In light of the lack of a specific rating determination or specific notification of appellate rights as to this issue, re-adjudication on a de novo basis is appropriate. The issue of entitlement to service connection for lumbar disc disease is considered pending before the agency of original jurisdiction and is inextricably intertwined with the issue on appeal. The Court has held that a claim that is inextricably intertwined with another claim which remains undecided and pending before VA must be adjudicated prior to a final order on the pending claim. Harris v. Derwinski, 1 Vet. App. 180 (1990). 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 In a November 2007 decision, the Court found the prior Board determination had, in essence, failed to provide adequate reasons and bases to support the decision rendered. The Board now finds that the issue of entitlement to service connection for lumbar disc disease is pending and is inextricably intertwined with the issue on appeal. Therefore, the case must be remanded for additional development. The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). A review of the record shows the veteran was notified of the VCAA duties to assist and of the information and evidence necessary to substantiate his increased rating claim by correspondence dated in August 2003 and November 2004. The November 2004 correspondence, however, erroneously stated he had previously been notified that service connection had been denied for lumbar disc disease. Therefore, adequate notice for this service connection claim must be provided. As this case must be remanded for additional development the Board also finds that remedial notice required as result of the decisions in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), and Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008), is required. Accordingly, the case is REMANDED for the following: 1. The veteran must be provided notification (1) of the information and evidence not of record necessary to substantiate his claim for entitlement to service connection for lumbar disc disease, (2) of the information and evidence that VA will seek to provide, (3) of the information and evidence that he is expected to provide, and (4) to request or tell him to provide any evidence in his possession that pertains to the claim. These notice requirements are to be applied to all elements of the claim. 2. The veteran should be provided any additional VCAA notice required on his increased rating claim as result of the decision in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). This includes notification (1) that to substantiate his claim he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life, (2) generally, of the diagnostic code criteria necessary for entitlement to a higher disability rating that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on his employment and daily life, (3) that if an increase in disability is 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 0% to as much as 100% (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, and (4) of examples of the types of medical and lay evidence that he may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation (such as 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). 3. The veteran should be requested to provide the names and addresses of all medical care providers, VA and non-VA, who have treated him for a back disability since February 2006. After the veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If records identified by the veteran can not be obtained, a notation to that effect should be inserted in the file. The veteran and his attorney 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. 4. The issues of entitlement to service connection for lumbar disc disease should be adequately developed and adjudicated. The veteran and his attorney must be notified of any decision and of his appellate rights. If a timely notice of disagreement is filed, the veteran should be furnished a statement of the case and provided the requisite period of time for a response. 5. 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 remains denied, the veteran and his attorney should be furnished a 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).