Citation Nr: 0810619 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 02-04 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder as secondary to the service connected back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from January 1964 to December 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2001 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board has remanded the case in October 2003 and October 2005. 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 part, it has been noted that the appellant and his representative have been trying to raise an issue of secondary service connection for a psychiatric disorder. Initially secondary service connection was denied by rating decision of February 1980. Appellant was notified and did not appeal. A recent rating action held that new and material evidence had not been received to reopen the secondary service connection claim. The TDIU issue was then recertified to the Board. The appellant's representative at the Board has entered a timely notice of disagreement with the denial of the reopening of the claim. This initiates the appellate process and requires remand of this issue. See Manlincon v. West, 12 Vet. App. 238 (1999). As such, consideration of the TDIU issue would have to be deferred, but is also in need of additional development. A preliminary review of the file shows the veteran was last afforded a VA examination regarding his service-connected low back disorder in February 2005. This is more than three years ago. In a March 2008 Informal Hearing Presentation a service representative reported that the veteran had reported a worsening of his spine disability over the past several years. Given the allegations of worsening disability, the veteran must be reexamined to determine the current severity of his lumbar spine disability. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (Court determined that Board should have ordered contemporaneous examination of veteran because a 23- month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Snouffer v. Gober, 10 Vet. App. 400, 403 (1997), quoting VAOPGCPREC 11-95, 60 Fed. Reg. 43, 186 (1995) (To the extent the claimant asserts the disability in question has undergone an increase in severity since the time of the last examination, a new VA examination is required). A veteran may receive a TDIU if he is unable to secure and maintain a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2007). Consideration may be given to a veteran's level of education, special training, and previous work experience in determining whether he is unemployable, but not to his age or the impairment caused by any disabilities that are not service connected. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2007). Mittleider v. West, 11 Vet. App. 181, 182 (1998). The VCAA has enhanced VA's duty to notify a veteran of the information and evidence necessary to substantiate a claim for VA benefits. The VCAA requires VA to notify him and his representative of any information, and any medical or lay evidence not previously provided to the Secretary of VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the veteran and his representative of which portion, if any, of the evidence is to be provided by him and which part, if any, VA will attempt to obtain on his behalf. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. The U. S. Court of Appeals for Veterans Claims (Court) further expounded on the VCAA notice content requirements in Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court held, in part, that a VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1) (2007). Also, during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 9 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and effective date of an award. In this appeal at hand, the veteran was provided notice of the type of information and evidence needed to substantiate his increased rating claim (i.e., the degree of disability element), but he was not provided notice of the type of evidence necessary to establish an effective date in the event a higher disability rating is granted. He must receive this additional notice before deciding his appeal. The RO's July 2004 letter does not satisfy the requirements of the VCAA and the Court's recent holding in Dingess. Accordingly, this case is REMANDED for the following development and consideration: 1. Send the veteran another VCAA letter concerning the claim on appeal, with a copy to his representative. The letter must: 1) advise him of the type of evidence needed to substantiate the claim; 2) advise him of what evidence VA will obtain; 3) advise him of what evidence he is responsible for obtaining; and 4) tell him to submit all relevant evidence in his possession. The letter should also include an explanation of the information or evidence needed to establish an effective date for the claims on appeal, as recently outlined by the Court in Dingess/Hartman v. Nicholson, 9 Vet. App. 473 (2006). Also ask the veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, VA and private, who have treated him for the service-connected lumbar spine disability since February 2005, the date of his last VA examination. With his authorization, request copies of all indicated records that have not been obtained previously and associate them with the claims file. Any documents obtained that are in another language should be translated into English. 2. Provide the veteran and his representative a statement of the case (SOC) on issue 2 on the title page. He must then complete a timely substantive appeal to continue the appeal. If a timely substantive appeal is not filed, the appeal on this issue should be closed. If a substantive appeal is filed, any additional development should be undertaken and additional notice provided as indicated. 3. Schedule the veteran for VA examination(s), by physician(s) to obtain orthopedic and neurological findings and medical opinions concerning the current severity of his service-connected lumbar spine disability. [The Board will leave it to the AMC's discretion as to whether this actually requires one versus two examinations.] Whichever the case, the claims folder and a copy of this remand are to be made available to the examiner(s), and the examiner(s) is asked to confirm he or she has reviewed the claims file for the veteran's pertinent medical history. The orthopedic evaluation should set forth all objective findings regarding the veteran's service-connected lumbar spine disability, including range of motion measurements (for forward flexion, backward extension, left and right lateral flexion, and left and right rotation). The examiner should comment on whether there is functional loss due to pain/painful motion, weakened movement, premature/excess fatigability, and incoordination, including especially with prolonged use of the thoracic spine and when the veteran's symptoms are most problematic ("flare-ups"). DeLuca v. Brown, 8 Vet. App. 202 (1995), citing 38 C.F.R. §§ 4.40, 4.45, and 4.59. The examiner should also indicate to what extent the back pathology impedes his ability to obtain or maintain substantial gainful employment without consideration to age or other non-service connected disabilities. The neurological evaluation should include any tests or studies deemed appropriate to determine the presence of any associated objective neurologic abnormalities. If there are neurological changes, the nerve involved should be identified and the symptoms and impairments should be described in detail. 4. Then readjudicate the claim in light of the additional evidence obtained. If the claim is not granted to the veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to respond to it. Thereafter, the case should be returned to the Board for further appellate review, if in order. The purpose of this REMAND is to obtain additional evidence and ensure the veteran is afforded due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate disposition warranted. No action is required by the veteran until contacted. He has the right to submit additional evidence and argument concerning the claims 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). _________________________________________________ MICHAEL D. LYON 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).