Citation Nr: 0810688	
Decision Date: 04/01/08    Archive Date: 04/14/08

DOCKET NO.  06-00 388	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, 
New York


THE ISSUES

1.  Entitlement to an increased (compensable) disability 
rating for hearing loss of the left ear.

2.  Entitlement to an increased disability rating for 
chondromalacia of the left knee, currently evaluated as 10 
percent disabling.

3.  Entitlement to an increased disability rating for 
chondromalacia of the right knee, currently evaluated as 10 
percent disabling.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. B. Yantz, Associate Counsel
INTRODUCTION

The veteran served on active duty from December 1975 to 
December 1979.

This matter has come before the Board of Veterans' Appeals 
(Board) on appeal from a July 2004 rating decision of the St. 
Petersburg, Florida Department of Veterans Affairs (VA) 
Regional Office (RO).  Thereafter, the veteran's file was 
transferred to the RO in New York, New York.

In a May 1980 rating decision, the New York RO granted 
service connection for hearing loss of the left ear and 
assigned a 0 percent rating, effective December 2, 1979.  The 
veteran did not appeal this rating decision with regard to 
this issue.

In a November 1981 rating decision, the New York RO granted 
service connection for bilateral knee chondromalacia and 
assigned a 10 percent rating, effective December 2, 1979.  
The veteran did not appeal this rating decision.

In a November 1983 rating decision, the New York RO reduced 
the disability rating for the veteran's service-connected 
bilateral knee chondromalacia to 0 percent, effective 
February 1, 1984.  The veteran perfected a timely appeal of 
this rating decision.  In June 1986, the Board denied his 
claim for an increased (compensable) rating for bilateral 
knee chondromalacia.

In July 1996, the veteran filed an increased rating claim for 
his bilateral knee chondromalacia.

In an August 1996 rating decision, the New York RO granted 
service connection for: (1) chondromalacia of the left knee, 
assigning a 10 percent rating, effective July 3, 1996; and 
(2) chondromalacia of the right knee, assigning a 10 percent 
rating, effective July 3, 1996.

In September 2003, the veteran filed the present increased 
rating claims for his hearing loss of the left ear, 
chondromalacia of the left knee, and chondromalacia of the 
right knee.

For reasons explained below, the issues of entitlement to an 
increased disability rating for chondromalacia of the left 
knee and entitlement to an increased disability rating for 
chondromalacia of the right knee are addressed in the REMAND 
portion of the decision below and are REMANDED to the New 
York RO via the Appeals Management Center (AMC) in 
Washington, DC.


FINDINGS OF FACT

1.  The results of an October 2005 VA audiological 
examination show that the veteran had Level I impairment in 
his left ear.

2.  The results of a September 2006 VA audiological 
examination show that the veteran had Level I impairment in 
his left ear.

3.  Service connection is not in effect for hearing loss of 
the right ear; therefore, Level I impairment is assigned for 
the right ear.  See 38 C.F.R. §§ 3.383, 4.85(f) (2007).


CONCLUSION OF LAW

The criteria for an increased (compensable) disability rating 
for hearing loss of the left ear have not been met.  38 
U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.85, 
4.86, Diagnostic Code 6100 (2007).








REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act (VCAA)

The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 
5107, and 5126, was signed into law on November 9, 2000.  
Implementing regulations were created, codified at 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, and 3.326 (2007).

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 that 
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.  Pelegrini v. 
Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II).  
This fourth "element" of the notice requirement comes from 
the language of 38 C.F.R. § 3.159(b)(1).  Charles v. 
Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. 
Principi, 16 Vet. App. 183, 186-87 (2002).

The United States Court of Appeals for Veterans Claims 
(Court) held in Pelegrini II that VCAA notice, as required by 
38 U.S.C.A. § 5103(a) (West 2002), to the extent possible, 
must be provided to a claimant before the initial unfavorable 
RO decision on a claim for VA benefits.  Pelegrini II, 18 
Vet. App. 112, 119-20 (2004).  See Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006).  In this case, the veteran was 
provided notice of the VCAA in November 2003, prior to the 
adjudication of his increased rating claim for hearing loss 
of the left ear in the July 2004 rating decision at issue.

The VCAA letter summarized the evidence needed to 
substantiate the claim and VA's duty to assist.  It also 
specified the evidence that the veteran was expected to 
provide, including the information needed to obtain both his 
private and VA medical treatment records.  In this way, the 
VCAA letter clearly satisfied the first three "elements" of 
the notice requirement.  Additionally, the letter advised the 
veteran of the following: "It's your responsibility to make 
sure that we receive all requested records that aren't in the 
possession of a Federal department or agency."  (Emphasis in 
original).  This statement satisfied the fourth "element" of 
the notice requirement, in that it informed the veteran that 
he could submit any and all evidence which was pertinent to 
his claim, and not merely that evidence requested by the RO.

During the pendency of this appeal, on March 3, 2006, the 
Court issued a decision in the consolidated appeal of 
Dingess/Hartman v. Nicholson, 19 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.  Those five elements include: 
1) veteran status; 2) existence of a disability; (3) a 
connection between the veteran's service and the disability; 
4) degree of disability; and 5) effective date of the 
disability.  The Court held that, upon receipt of an 
application for a service connection claim, 38 U.S.C.A. § 
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 the elements 
of the claim as reasonably contemplated by the application.  
Id. at 486.  Additionally, this notice must state that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is granted.  
Id.

In the present appeal, the veteran received Dingess notice in 
March 2006, including as it relates to the downstream 
disability rating and effective date elements of his claim.

For an increased rating claim, section § 5103(a) requires, at 
a minimum, that: (1) VA notify the claimant that, to 
substantiate such a claim, the claimant 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 the claimant's employment and 
daily life; (2) 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 of that 
worsening 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; (3) the claimant must be notified that, should an 
increase in disability be found, a disability rating will be 
determined by applying relevant diagnostic codes; and (4) the 
notice must also provide examples of the types of medical and 
lay evidence that the claimant may submit (or ask VA to 
obtain) that are relevant to establishing entitlement to 
increased compensation.  See Vazquez-Flores v. Peake, 22 Vet. 
App. 37 (2008).

In the present appeal, the Board acknowledges that the 
November 2003 VCAA letter did not satisfy all of the elements 
required by the recent Vazquez-Flores decision.  Nonetheless, 
the veteran was not prejudiced in this instance, as the 
November 2003 letter did provide examples of the types of 
medical and lay evidence that the veteran may submit (or ask 
VA to obtain) to support his claim for increased 
compensation.  In addition, the November 2005 Statement of 
the Case provided the veteran with the specific rating 
criteria for hearing loss and explained how the relevant 
diagnostic code would be applied.  An October 2006 
Supplemental Statement of the Case subsequently readjudicated 
the appeal, thereby rendering any pre-adjudicatory notice 
error as non-prejudicial.  All of these factors combine to 
demonstrate that a reasonable person could have been expected 
to understand what was needed to substantiate the claim.

Similarly, the veteran's actions are indicative of his actual 
knowledge of the elements outlined in Vazquez-Flores for the 
purpose of substantiating his increased rating claim.  In the 
September 2003 claim, the veteran's representative noted the 
veteran's assertion that his service-connected disability had 
increased in its level of severity.  During his October 2005 
VA audiological examination, the veteran reported that he 
needs the television and radio to be louder even with his 
hearing aids in, thereby describing the effect that the 
perceived worsening of his hearing loss has on his daily 
life.  In a June 2006 submission, the veteran provided VA 
with a detailed list of all of his treating physicians, 
including a phone number for his audiologist, and granted VA 
full permission to obtain his medical information from such 
doctors.  In the February 2008 appellant's brief, the 
veteran's representative stated: "[The veteran] maintains 
[that] the medical evidence contained within the record is 
sufficient to establish increased ratings...The [veteran] has 
continued to seek a rating that more accurately approximates 
his level of severity...The veteran maintains [that] the 
evidence of record supports a finding for increased 
evaluations."  Based on this evidence, the Board is 
satisfied that the veteran had actual knowledge of what was 
necessary to substantiate his increased rating claim for left 
ear hearing loss.  See Dalton v. Nicholson, 21 Vet. App. 23, 
30-31 (2007) (actual knowledge is established by statements 
or actions by the claimant or the claimant's representative 
that demonstrate an awareness of what is necessary to 
substantiate a claim).

The Board finds that all relevant evidence necessary for an 
equitable resolution of the issue on appeal (specifically, 
hearing loss of the left ear) has been identified and 
obtained, to the extent possible.  The evidence of record 
includes VA examination reports and statements from the 
veteran and his representative.  The veteran has not 
indicated that he has any further evidence to submit to VA, 
or which VA needs to obtain.  There is no indication that 
there exists any additional evidence that has a bearing on 
this case that has not been obtained.  The veteran and his 
representative have been accorded ample opportunity to 
present evidence and argument in support of his appeal.  All 
pertinent due process requirements have been met.  See 38 
C.F.R. § 3.103 (2007).

In short, the Board has carefully considered the provisions 
of the VCAA in light of the record on appeal, and for the 
reasons expressed above, it finds that the development of the 
increased rating claim for hearing loss of the left ear has 
been consistent with these provisions.  Accordingly, the 
Board will proceed to a decision on the merits.

Pertinent Laws and Regulations

Disability ratings - in general

Disability ratings are assigned in accordance with VA's 
Schedule for Rating Disabilities and are intended to 
represent the average impairment of earning capacity 
resulting from disability.  See 38 U.S.C.A. § 1155 (West 
2002); 38 C.F.R. §§ 3.321(a), 4.1 (2007).  Separate 
diagnostic codes identify the various disabilities.  See 38 
C.F.R. Part 4.  Specific diagnostic codes will be discussed 
where appropriate below.

When a question arises as to which of two ratings shall be 
applied under a particular diagnostic code, the higher 
evaluation will be assigned if the disability picture more 
nearly approximates the criteria for the higher rating; 
otherwise, the lower rating will be assigned.  See 38 C.F.R. 
§ 4.7 (2007).

In order to evaluate the level of disability and any changes 
in condition, it is necessary to consider the complete 
medical history of the veteran's condition.  Schafrath v. 
Derwinski, 1 Vet.App. 589, 594 (1991).  However, where an 
increase in the level of a service-connected disability is at 
issue, the primary concern is the present level of 
disability.  Francisco v. Brown, 7 Vet.App. 55 (1994).  
Nevertheless, the Board acknowledges that a claimant may 
experience multiple distinct degrees of disability that might 
result in different levels of compensation from the time the 
increased rating claim was filed until a final decision is 
made.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The 
analysis in the following decision is therefore undertaken 
with consideration of the possibility that different 
"staged" ratings may be warranted for different time 
periods.

Specific rating criteria

In evaluating service-connected hearing loss, disability 
ratings are derived by a mechanical application of the rating 
schedule to the numeric designations assigned after 
audiometric evaluations are performed.  See Lendenmann v. 
Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss 
disability evaluations range from noncompensable to 100 
percent based on organic impairment of hearing acuity, as 
measured by controlled speech discrimination tests in 
conjunction with the average hearing threshold, as measured 
by puretone audiometric tests in the frequencies 1000, 2000, 
3000, and 4000 cycles per second (Hertz).  The rating 
schedule establishes 11 auditory acuity levels, designated 
from Level I for essentially normal hearing acuity through 
Level XI for profound deafness.  VA audiometric examinations 
are conducted using a controlled speech discrimination test 
together with the results of a puretone audiometry test.  The 
vertical lines in Table VI (in 38 C.F.R. § 4.85) represent 
nine categories of the percentage of discrimination based on 
the controlled speech discrimination test.  The horizontal 
columns in Table VI represent nine categories of decibel loss 
based on the puretone audiometry test.  The numeric 
designation of impaired hearing (Levels I through XI) is 
determined for each ear by intersecting the vertical row 
appropriate for the percentage of discrimination and the 
horizontal column appropriate to the puretone decibel loss.

The percentage evaluation is found from Table VII (in 38 
C.F.R. § 4.85) by intersecting the vertical column 
appropriate for the numeric designation for the ear having 
the better hearing acuity and the horizontal row appropriate 
to the numeric designation for the ear having the poorer 
hearing acuity.  For example, if the better ear has a numeric 
designation Level of "V" and the poorer ear has a numeric 
designation Level of "VII," the percentage evaluation is 30 
percent.  See 38 C.F.R. § 4.85 (2007).

If impaired hearing is service-connected in only one ear, in 
order to determine the percentage evaluation from Table VII, 
the non-service-connected ear will be assigned a Roman 
numeral designation for hearing impairment of I, subject to 
the provisions of 38 C.F.R. § 3.383.  38 C.F.R. §§ 3.383, 
4.85(f) (2007).

Effective June 10, 1999, pertinent regulatory changes were 
made to 38 C.F.R. § 4.86, regarding cases of exceptional 
hearing loss.  The provisions of 38 C.F.R. § 4.86(a) now 
provide that, when the puretone threshold at each of the four 
specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 
55 decibels or more, the rating specialist will determine the 
Roman numeral designation for hearing impairment from either 
Table VI or Table VIa, whichever results in the higher 
numeral.  Each ear will be evaluated separately.  The 
provisions of 38 C.F.R. § 4.86(b) now provide that, when the 
puretone threshold is 30 decibels or less at 1000 hertz, and 
70 decibels or more at 2000 hertz, the rating specialist will 
determine the Roman numeral designation for hearing 
impairment from either Table VI or Table VIa, whichever 
results in the higher numeral.  That numeral will then be 
elevated to the next higher Roman numeral.  Each ear will be 
evaluated separately.

Analysis

After a review of the medical evidence, the Board finds that 
the veteran's hearing loss of the left ear does not warrant 
an increased (compensable) evaluation at any time since the 
date of claim on September 24, 2003.  The pertinent medical 
evidence of record consists of VA audiological examinations 
conducted in October 2005 and September 2006.

At the veteran's October 2005 VA audiological examination, 
puretone threshold levels measured the following:




HERTZ



500
1000
2000
3000
4000
LEFT
N/A
30
25
40
50

The report of the October 2005 VA examination shows that the 
veteran's manifested average puretone threshold was 36 
decibels in the left ear, with speech discrimination of 100 
percent in the left ear.  Reference to 38 C.F.R. § 4.85, 
Table VI, shows the veteran's hearing loss to be Level I 
impairment for the left ear.  As service connection is not in 
effect for the right ear, Level I impairment is assigned for 
the right ear.  See 38 C.F.R. §§ 3.383, 4.85(f) (2007).  
Under 38 C.F.R. § 4.85, Table VII, the veteran's degree of 
hearing impairment is rated as 0 percent disabling.

These audiological findings of October 2005 show no 
exceptional patterns of hearing impairment in the left ear; 
therefore, the current provisions of § 4.86(a) and (b) are 
not applicable to the October 2005 VA examination results.

At the veteran's September 2006 VA audiological examination, 
puretone threshold levels measured the following:




HERTZ



500
1000
2000
3000
4000
LEFT
N/A
40
35
30
35

The report of the September 2006 VA examination shows that 
the veteran's manifested average puretone threshold was 35 
decibels in the left ear, with speech discrimination of 96 
percent in the left ear.  Reference to 38 C.F.R. § 4.85, 
Table VI, shows the veteran's hearing loss to be Level I 
impairment for the left ear.  As service connection is not in 
effect for the right ear, Level I impairment is assigned for 
the right ear.  See 38 C.F.R. §§ 3.383, 4.85(f) (2007).  
Under 38 C.F.R. § 4.85, Table VII, the veteran's degree of 
hearing impairment is rated as 0 percent disabling.

These audiological findings of September 2006 show no 
exceptional patterns of hearing impairment in the left ear; 
therefore, the current provisions of § 4.86(a) and (b) are 
not applicable to the September 2006 VA examination results.

Because the law provides specific requirements in terms of 
puretone threshold averages and speech discrimination test 
results for each percentage rating, the assignment of a 
disability rating higher than 0 percent, utilizing the 
provisions of 38 C.F.R. § 4.7, is not appropriate at any time 
since the date of claim on September 24, 2003.  The veteran's 
October 2005 and September 2006 VA test results clearly fall 
within the parameters for a 0 percent rating, but no more.  
See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.85, 
Tables VI, VII, Diagnostic Code 6100 (2007).

The Board recognizes the veteran's apparent dissatisfaction 
with the disability rating assigned.  However, pursuant to 
the dictates of 38 C.F.R. § 4.85 and Lendenmann, in 
determining the above rating, the Board has engaged in, as it 
must, a "mechanical," objective application of the numerical 
data generated from the veteran's audiological examinations.  
See Lendenmann, 3 Vet. App. at 349.  In this regard, the 
Board exercises no discretion, and simply must apply the test 
score numbers to the relevant Tables.  See 38 C.F.R. § 
4.85(b)-(e); accord Lendenmann, supra, at 349.  As noted 
above, the Board lacks the authority to operate outside the 
bounds of applicable regulatory provisions, including the 
guidelines for the assignment of disability ratings set forth 
in 38 C.F.R. § 4.85.  See 38 U.S.C.A. § 7104; 38 C.F.R. § 
20.101(a).

While the Board empathizes with the veteran's impairment, and 
does not dispute the fact that he has hearing loss in his 
left ear, the Board must conclude, based on the results of 
mandatory auditory tests and the mechanical application of 
relevant regulations by which the Board is bound, that the 
level of his disability does not rise to a compensable rating 
at any time since the date of claim on September 24, 2003.  
See 38 C.F.R. § 4.85(b)-(e); see also 38 U.S.C.A. § 7104; 38 
C.F.R. § 20.101(a).

Ordinarily, the VA Schedule will apply unless there are 
exceptional or unusual factors which would render application 
of the schedule impractical.  See Fisher v. Principi, 4 Vet. 
App. 57, 60 (1993).  According to 38 C.F.R. § 3.321(b)(1), an 
extra-schedular disability rating is warranted upon a finding 
that the case presents such an exceptional or unusual 
disability picture, with such related factors as marked 
interference with employment or frequent periods of 
hospitalization, that would render impractical the 
application of the regular schedular standards.  See 38 
C.F.R. § 3.321(b)(1) (2005); Fanning v. Brown, 4 Vet. App. 
225, 229 (1993).

In the current appeal, the Board has considered the issue of 
whether the veteran's hearing loss of the left ear presents 
an exceptional or unusual disability picture as to render 
impractical the application of the regular schedular 
standards such that referral to the appropriate officials for 
consideration of an extra-schedular rating is warranted.  See 
38 C.F.R. § 3.321(b)(1) (2007); Bagwell v. Brown, 9 Vet. App. 
337, 338-339 (1996).  In this regard, the Board notes that 
there is no evidence in the claims file of frequent periods 
of hospitalization or marked interference with employment due 
to the veteran's left ear hearing disability.  As a result, 
the Board finds that the criteria for submission for 
assignment of an extra-schedular rating pursuant to 38 C.F.R. 
§ 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 
337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); 
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

All things considered, the record as a whole does not show 
persistent symptoms that equal or more nearly approximate the 
criteria for a compensable evaluation at any time since the 
date of claim on September 24, 2003.  See Fenderson, 12 Vet. 
App. at 125-26.  That is to say, the veteran's disability has 
been no more than 0 percent disabling since the date his 
claim was filed, so his rating cannot be "staged" because 
this represents his greatest level of functional impairment 
attributable to this condition since that date.

In summary, for the reasons and bases expressed above, the 
Board concludes that a compensable disability rating for 
hearing loss of the left ear is not warranted at any time 
since the date of claim on September 24, 2003.  Since the 
preponderance of the evidence is against the claim, the 
benefit of the doubt rule does not apply.  38 C.F.R. § 4.3; 
Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  The benefit 
sought on appeal is denied.


ORDER

Entitlement to an increased (compensable) disability rating 
for hearing loss of the left ear is denied.


REMAND

As outlined above, for an increased rating claim, section § 
5103(a) requires, at a minimum, that: (1) VA notify the 
claimant that, to substantiate such a claim, the claimant 
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 the 
claimant's employment and daily life; (2) 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 of that worsening 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; (3) the claimant 
must be notified that, should an increase in disability be 
found, a disability rating will be determined by applying 
relevant diagnostic codes; and (4) the notice must also 
provide examples of the types of medical and lay evidence 
that the claimant may submit (or ask VA to obtain) that are 
relevant to establishing entitlement to increased 
compensation.  See Vazquez-Flores v. Peake, 22 Vet. App. 37 
(2008).

In a January 2006 decision, the Social Security 
Administration (SSA) determined that the veteran was disabled 
due to a number of disabilities, including bilateral 
chondromalacia.  See SSA Decision at page 3.  The SSA 
decision also cited a detailed narrative report dated 
December 9, 2005 from the veteran's primary care physician, 
Dr. B.N., stating that the veteran has "an unsteady gait due 
to obesity and bilateral chondromalacia..."  See id. at page 
2.  This detailed narrative report from Dr. B.N. has not been 
associated with the claims file.

In June 2006, the veteran submitted a detailed timeline of 
his medical treatment, including treatment for his 
chondromalacia in both knees.  The veteran stated that he had 
a right knee MRI on January 4, 2006, and a left knee MRI on 
January 30, 2006.  These MRI reports have not been associated 
with the claims file.

Accordingly, the case is REMANDED for the following actions:

1.  VA should send the veteran and his 
representative a letter that complies 
with the notification requirements of 
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 
3.159(b).

The letter should explain what, if any, 
information and (medical and lay) 
evidence not previously provided to VA 
is necessary to substantiate the 
claims.  The letter should indicate 
which portion of the evidence, if any, 
is to be provided by the veteran and 
which portion, if any, VA will attempt 
to obtain on his behalf.  The letter 
should also request that the veteran 
provide any evidence in his possession 
that pertains to the claims.

In addition, the letter should contain 
an explanation as to the information or 
evidence needed to establish a 
disability rating and effective date 
for the claims on appeal, as outlined 
by the Court in Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006).

Finally, the letter must notify the 
veteran that, to substantiate his 
increased rating claims: (1) he must 
provide, or ask VA to obtain, medical 
or lay evidence demonstrating a 
worsening or increase in severity of 
the disabilities and the effect such 
worsening has on the claimant's 
employment and daily life; (2) if the 
Diagnostic Code(s) 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 disabilities and the 
effect such 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; (3) should 
an increase in disabilities be found, a 
disability rating will be determined by 
applying relevant Diagnostic Codes; and 
(4) examples must be provided of the 
types of medical and lay evidence that 
the claimant may submit (or ask VA to 
obtain) that are relevant to 
establishing entitlement to increased 
compensation.  See generally Vazquez-
Flores v. Peake, No. 05-0355 (U.S. Vet. 
App. January 30, 2008).

2.  After securing any necessary 
authorizations from the veteran, the 
New York RO should contact Dr. B.N. and 
request that he provide any medical 
records pertaining to the veteran that 
are available in his possession, 
including his December 9, 2005 detailed 
narrative report that was submitted to 
the SSA.  Associate this request and 
all records received with the claims 
file.  If records are unavailable, then 
a negative reply is requested.

3.  The New York RO should contact the 
SSA and request that it provide any 
records pertaining to the veteran's 
award of Social Security benefits, 
including the medical records relied 
upon in its decision.  Associate the 
request and all records received with 
the claims file.  If these records are 
unavailable from the SSA, then a 
negative reply is requested.

4.  The New York RO should obtain the MRI 
reports for the veteran's right knee 
(dated January 4, 2006) and left knee 
(dated January 30, 2006), and then 
associate those reports with the claims 
file.  If such records are unavailable, 
then a negative reply from the 
appropriate medical facility is 
requested.

5.  After completion of the above 
actions, VA should readjudicate the 
veteran's claims.  If any determination 
remains unfavorable to the veteran, then 
he and his representative should be 
provided with a Supplemental Statement of 
the Case and be afforded an opportunity 
to respond before the case is returned to 
the Board for further review.

The veteran has the right to submit additional evidence and 
argument on the matter or matters that 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).



______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals






 Department of Veterans Affairs