Citation Nr: 0810803 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 04-40 237 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 10 percent for right proximal femur stress fracture residuals. 2. Entitlement to a rating in excess of 10 percent for left proximal femur stress fracture residuals. 3. Whether new and material evidence has been received to reopen a claim for service connection for pelvic pain and abductor tendinitis of the skeletal system. 4. Whether new and material evidence has been received to reopen a claim for service connection for fracture, left fifth toe, claimed as secondary to service-connected disabilities of right and left proximal femur stress fracture residuals. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Associate Counsel INTRODUCTION The veteran had active military service from July 1979 to July 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal of a June 2003 rating decision by the RO that granted an increased rating from 0 to 10 percent for the service-connected left and right proximal femur stress fracture residuals, each, effective April 24, 2002, the date of receipt of the claim, and declined to reopen a claim for service connection for fracture, left fifth toe, claimed as secondary to her service-connected bilateral femur disabilities and a claim for service connection for pelvic pain and abductor tendonitis of the skeletal system. The veteran filed a notice of disagreement (NOD) in June 2004, and the RO issued a statement of the case (SOC) in September 2004. The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in November 2004. In February 2008, the veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. As indicated below, during the hearing, the veteran indicated her desire to withdraw from appeal her petition to reopen her claim for service connection fracture, left fifth toe, claimed as secondary to service-connected disabilities of right and left proximal femur stress fracture residuals, to include the submission of a written statement too this affect. The Board's dismissal of the veteran's petition to reopen her claim for service connection for fracture, left fifth toe, claimed as secondary to service-connected disabilities of right and left proximal femur stress fracture residuals, is set forth below. The claims for ratings in excess of 10 percent for service-connected right and left proximal femur stress fracture residuals and the veteran's petition to reopen the claim for service connection for pelvic pain and abductor tendonitis of the skeletal system are addressed in the remand following the order; these matters are being remanded to RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran when further action, on her part, is required. As a final preliminary matter, the Board notes that in the veteran's April 2002 claim she appears to raise the issue of reinstatement and retroactive payment of VA benefits for a prior 10 percent rating awarded for multiple noncompensable service-connected disabilities that had been terminated in October 2000. As that matter has not been adjudicated by the RO, it is not properly before the Board; hence, it is referred to the RO for proper action. FINDING OF FACT On February 5, 2008, prior to the promulgation of a decision in the appeal, the veteran and her representative requested withdrawal of the appeal with regard to the petition to reopen the claim for service connection for fracture, left fifth toe, claimed as secondary to service-connected disabilities of right and left proximal femur stress fracture residuals. CONCLUSION OF LAW The criteria for withdrawal of a Substantive Appeal by the veteran, with regard to the petition to reopen the claim for service connection for fracture, left fifth toe, claimed as secondary to service-connected disabilities of right and left proximal femur stress fracture residuals, have been met. 38 U.S.C.A. § 7105(d)(5) (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.202, 20.204 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 7105(d)(5) (West 2002 & Supp. 2007), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn on the record during a hearing, and at any time prior to the promulgation of a decision in the appeal. 38 C.F.R. §§ 20.202, 20.204(b)(1), (3) (2007). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(a) (2007). During the February 5, 2008 Board hearing (p. 2-3), the veteran and her representative requested withdrawal of the appeal, to include the submission of said request in writing, as to the petition to reopen the claim for service connection for fracture, left fifth toe, claimed as secondary to service-connected disabilities of right and left proximal femur stress fracture residuals; hence, there remain no allegations of errors of fact or law for appellate consideration with respect to that claim. Accordingly, the Board does not have jurisdiction to review the appeal as to the petition to reopen the claim for service connection for fracture, left fifth toe, claimed as secondary to service- connected disabilities of right and left proximal femur stress fracture residuals. ORDER The appeal as to the petition to reopen the claim for service connection for fracture, left fifth toe, s secondary to service-connected disabilities of right and left proximal femur stress fracture residuals, is dismissed. REMAND The Board finds that further RO action on the remaining claims on appeal is warranted. The veteran contends that her service-connected right and left femur disabilities are more severe than the currently assigned 10 percent ratings reflect. In this regard, she stated that she received medication from the VA Medical Center (VAMC) in San Juan for pain that was constant in her knees, including the area in between her knees, along with her back and hips. She also complained of feeling numb in her right side. The veteran testified that her service- connected disability has affected her walking and has gotten worse, not better. The Board notes that the veteran last had a VA examination in July 2002. Therefore, to ensure that the record reflects the current severity of the veteran's right and left femur disabilities, the Board finds that a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed so that the evaluation of the claimed disabilities will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous"). The examination should include a review of the veteran's claims file and past clinical history, with particular attention to the severity of present symptomatology, as well as any significant pertinent medical history since her July 2002 examination. See also 38 C.F.R. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). Accordingly, the RO should arrange for the veteran to undergo VA examination, by an appropriate physician, at a VA medical facility. The veteran is hereby advised that failure to report for the scheduled VA examination, without good cause, shall result in a denial of the claims for increase. See 38 C.F.R. § 3.655(b) (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the appellant does not report for the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to her by the pertinent VA medical facility. Prior to arranging for the veteran to undergo further examination, the RO should obtain and associate with the claims file all outstanding VA records. The claims file reflects that the veteran has received medical treatment from the VAMC in San Juan, Puerto Rico; however, there are no records from this VA facility associated with the claims file. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain all outstanding pertinent medical records from April 2001 to the present, following the current procedures prescribed in 38 C.F.R. § 3.159 (2007) as regards requests for records from Federal facilities. The Board also notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The claims file reveals that additional RO action is needed to comply with the notification requirements of the VCAA. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, with respect to the veteran's petition to reopen the previously denied claim for service connection remaining on appeal, a claimant must be notified of both what is needed to reopen the claim and what is needed to establish the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the record contains a February 2003 notice letter that provided the veteran with the information necessary to substantiate the underlying claim for service connection and notice of the need to submit new and material evidence; however, that notice incorrectly provided the veteran with the former standard governing the submission of new and material evidence. The veteran filed her claim in April 2002, thus the revised standard was the correct version for which she should have been provided notice pursuant to 38 C.F.R. § 3.156(a) (2007) governing petitions to reopen a claim for service connection filed on or after August 29, 2001. Furthermore, even though the June 2003 rating decision and September 2004 SOC provided the correct standard under the current version of 38 C.F.R. § 3.156, a generic notice of this type is not sufficient under Kent. Rather, the record must show that the veteran was provided pertinent notice under 38 U.S.C.A. § 5103 which describes "what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial." See Kent, 20 Vet. App. at 10. In this case, the Board notes that the February 2003 RO letter notified the veteran that she had been previously denied service connection for pelvic and abductor tendonitis, which she appealed, and was then denied by the Board, and was notified on May 24, 1994. However, the Board notes that the last previous denial for service connection for the veteran's pelvic pain and abductor tendonitis was a May 1999 Board decision. Therefore, the RO provided incorrect notice to the veteran of the date of her previous denial. In addition, the copy of that last final decision was returned to the Board later that same month from the Post Office as undeliverable. In June 1999, the Board requested that the RO forward the veteran a copy of the May 1999 Board decision once the RO had ascertained the veteran's address. However, the record does not reflect that when the veteran reinitiated contact with the RO, whether or not a copy of the May 1999 Board decision was forwarded to her current address. Therefore, a remand is warranted for the RO to provide the veteran with a copy of the May 1999 Board decision and to ensure she is properly notified of what evidence is needed to reopen her claim for service connection for pelvic pain and abductor tendonitis under 38 C.F.R. § 3.156, effective August 29, 2001, and pursuant to the holding in Kent, supra. The Board further notes that, in Vazquez-Flores, the Court found that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, to substantiate such a claim: (1) 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 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) 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 The Board emphasizes that action by the RO is required to satisfy the notification provisions of the VCAA. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003). Hence, the RO should, through VCAA-compliant give the veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal, explaining that she has a full one-year period for response. See 38 U.S.C.A. § 5103 (b)(1)(West 2002); but see also 38 U.S.C.A. § 5103(b)(3)) (West Supp. 2007) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should also invite the appellant to submit all pertinent evidence in her possession, and ensure that its notice to the veteran meets the requirements of the decisions Kent and Vasquez- Flores (cited to above), as appropriate, as well as Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) (as regards the five elements of a claim for service connection- particularly, disability ratings and effective date), as appropriate. After providing the appropriate notice, the RO should obtain any additional evidence for which the veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2007). As a final point, the Board notes that part of the veteran's June 2004 NOD is in Spanish and has not been translated. The RO should have that part of the veteran's June 2004 NOD that is in Spanish as well as any additional records translated to English. The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure that the VCAA has fully been complied with. Hence, in addition to the action requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. In adjudicating the increased rating claims on appeal, the RO must document its specific consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) pursuant to Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007), is appropriate. Accordingly, these matters are remanded to the RO, via the AMC, for the following actions: 1. The RO should obtain from the San Juan VAMC all outstanding records of evaluation and/or treatment for the left and right pelvis, hips, and/or knees from April 2001 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should furnish to the veteran and her representative a VCAA-compliant notice letter requesting that the veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to any of the claims remaining on appeal that is not currently of record. Pertinent to the petition to reopen remaining on appeal, the letter must explain what type of evidence is needed to reopen the claim for service connection (in light of the basis(es) for the prior denial as well as what is needed to establish the underlying claim for service connection) The RO should specifically address the element(s) required to establish service connection that was/were found insufficient in the previous denial of the claim, as required by Kent (cited to above). In defining the term "new and material evidence," the RO must use the version of 38 C.F.R. § 3.156 applicable to claims filed on and after August 29, 2001. The RO should request the veteran furnish all pertinent evidence in her possession relating to each of the claims remaining on appeal, and explain the type of evidence that is her ultimate responsibility to submit. The RO should also ensure that its letter meets the notice requirements of Dingess/Hartman and Vazquez-Flores (cited to above). The RO's letter should clearly explain to the veteran that she has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the veteran responds, the RO should assist the veteran in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and her representative that the records were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. The veteran's June 2004 NOD, as well as any additional records written in Spanish, should be translated into English, and a copy of each English translation must be associated with the claims file. 5. After all available records and/or responses from each contacted entity are associated with the claims file, or, the time period for the veteran's response has expired, the RO should arrange for the veteran to undergo VA orthopedic examination, by an appropriate physician, to obtain medical information needed to assess the severity of the service- connected right and left proximal femur stress fracture residuals. The entire claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the veteran, and the examination report should reflect consideration of the veteran's documented medical history and assertions. All indicated tests and studies (to include X-rays of the pelvis, hips, and knees) should be accomplished (with all findings made available to the requesting physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The physician should conduct range of motion testing of each hip and knee (with findings expressed in degrees)., and render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the doctor should indicate the point at which pain begins. He or she should indicate whether, and to what extent, the veteran experiences likely functional loss of either hip or knee due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, he should express such functional loss in terms of additional degrees of limited motion. Based on all clinical findings, the examiner should provide an assessment as to whether each residual hip and/or knee disability is best characterized as slight, moderate, or marked. The examiner should also describe in detail the nature and degree of any impairment of each femur. The physician should set forth all examination findings, together with the complete rationale for the comments and opinion expressed, in a printed (typewritten) report. 6. If the veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to her by the pertinent VA medical facility. 7. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate each of the claims on appeal. If the veteran fails to report to the examination scheduled in connection with the claims for increase, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO should consider each claim in light of all pertinent evidence and legal authority, to include consideration of whether "staged rating" of the left and right femur disabilities, pursuant to the Hart (cited to above), is appropriate. 9. If any benefit sought on appeal remains denied, the RO must furnish to the veteran and her representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). These claims must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs