Citation Nr: 0810831 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-31 783 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a psychiatric disorder. 2. Entitlement to service connection for memory loss. 3. Entitlement to service connection for whole body pain. 4. Entitlement to an initial higher (compensable) rating for residuals of a fracture of the right femur. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The veteran had active service from June 1978 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 RO rating decision that granted service connection and a noncompensable rating for residuals of a fracture of the right femur, effective June 5, 2003. By this decision, the RO also denied service connection for a psychiatric disorder, memory loss, whole body pain, a left shoulder disability, and for a cervical spine disability. A May 2006 RO decision granted service connection and a 20 percent rating for a left shoulder disability, effective June 5, 2003, and granted service connection and a 10 percent rating for a cervical spine disability, effective June 5, 2003. Therefore, those issues are no longer on appeal. In January 2008, the veteran testified at a Travel Board hearing at the RO. The Board notes that at the January 2008 Board hearing, the veteran raised issues of whether new and material evidence has been submitted to reopen claims for service connection for bilateral hip disabilities and for bilateral ankle disabilities. The veteran also raised the issue of entitlement to service connection for a left knee disability. Those issues are not before the Board at this time and are referred to the RO for appropriate action. The issue of entitlement to an initial higher (compensable) rating for residuals of a fracture of the right femur is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT At his January 2008 hearing before the Board, the veteran withdrew his appeals concerning entitlement to service connection for a psychiatric disorder, memory loss, and for whole body pain. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal of the issue of entitlement to service connection for a psychiatric disorder have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). 2. The criteria for withdrawal of a substantive appeal of the issue of entitlement to service connection for memory loss have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). 3. The criteria for withdrawal of a substantive appeal of the issue of entitlement to service connection for whole body pain have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his authorized representative, except that a representative may not withdraw a Substantive Appeal filed by the appellant personally without the express written consent of the appellant. 38 C.F.R. § 20.204(c). In September 2005, the veteran submitted a statement perfecting his appeals as to the issues of entitlement to service connection for a psychiatric disorder, memory loss, and for whole body pain, as identified in the August 2005 statement of the case. Those issues were also subsequently listed in an August 2007 supplemental statement of the case. Prior to going on the record at the January 2008 hearing before the Board, the veteran submitted a statement withdrawing his appeals as to the issues of entitlement to service connection for a psychiatric disorder, memory loss, and for whole body pain. At the January 2008 Board hearing, the veteran also specifically stated that he was withdrawing the appeals as to these issues. The Board finds that the veteran's January 2008 statement as well as his statement at the hearing, once transcribed as part of the record of the hearing, indicating his intention to withdraw the appeals as to these issues satisfy the requirements for the withdrawal of a substantive appeal. See also Tomlin v. Brown, 5 Vet. App. 355 (1993) (holding that a statement made during a personal hearing, when later reduced to writing in a transcript, constitutes a Notice of Disagreement within the meaning of 38 U.S.C. § 7105(b)). As the appellant has withdrawn his appeals as to the issues of entitlement to service connection for a psychiatric disorder, memory loss, and for whole body pain, there remain no allegations of errors of fact or law for appellate consideration concerning these issues. The Board therefore has no jurisdiction to review the issues. Accordingly, the issues of entitlement to service connection for service connection for a psychiatric disorder, memory loss, and for whole body pain are dismissed. ORDER The appeal concerning the issue of entitlement to service connection for a psychiatric disorder is dismissed. The appeal concerning the issue of entitlement to service connection for memory loss is dismissed. The appeal concerning the issue of entitlement to service connection for whole body pain is dismissed. REMAND The other issue on appeal is entitlement to an initial higher (compensable) rating for residuals of a fracture of the right femur. The Board finds that there is a further VA duty to assist the veteran in developing evidence pertinent to his claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The veteran was last afforded a VA orthopedic examination as to his service-connected residuals of a fracture of the right femur in June 2006. The diagnosis was history of a right femur fracture. The Board notes that the veteran has received treatment for right leg problems subsequent to the June 2006 VA orthopedic examination. The veteran also underwent surgery on his right knee in May 2007. At the January 2008 Board hearing, the veteran testified that he underwent another surgery on his leg since his June 2006 VA examination. He stated that he had suffered increased pain and decreased mobility and that he had to constantly wear a brace on his leg to avoid having knee laxity and have his knee give out on him. The Board notes that the veteran has indicated that he has possible worsening of his residuals of a fracture of the right femur since the last examination. Further, the record clearly raises a question as to the current severity of the veteran's service-connected right leg disability. Therefore, the Board finds that a current examination is necessary. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA was required to afford a contemporaneous medical examination where examination report was approximately two years old); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Prior to the examination, any outstanding records of pertinent treatment should be obtained and added to the record. Further, the Board finds that the requirements of VA's duty to notify and assist the claimant have not been met. 38 U.S.C.A. §§ 5103, 5103a; 38 C.F.R. § 3.159. The notice requirements of the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify the veteran of what information or evidence is necessary to substantiate his claims; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim(s). Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Recently, the U.S. Court of Appeals for Veterans Claims (Court) held in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), that for a claim for increased compensation, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary 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. Id. Further, under Vazquez, 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 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. Additionally, the claimant must be notified that, should an increase in disability be 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 noncompensable to as much as 100 percent (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. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., 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. Vazquez-Flores, slip op. at 5-6. Here, a review of the claims folder shows that sufficient notice has not been sent to the veteran. The RO provided the veteran with a VCAA notice letter in June 2003. The notice letter did not specifically notify the veteran that he should provide evidence of the effect that worsening disabilities had on his employment and daily life (such as a specific measure or test). The letter also did not notify the veteran that should an increase in disability be 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 noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the of the symptoms of the condition for which the disability compensation is being sought, including their severity and duration, and their impact on employment and daily life. Thus, on remand the RO should also provide corrective VCAA notice. Accordingly, the case is REMANDED for the following: 1. The RO should provide the veteran with VCAA notice that is compliant with the requirements of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Specifically, the notice should advise the veteran that to substantiate the claim for entitlement to an initial higher (compensable) rating for residuals of a fracture of the right femur, he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase severity of the disability and the effect that worsening has on his employment and daily life. The veteran should also be afforded a copy of the applicable criteria needed for increased (higher) ratings under the applicable Diagnostic Codes for rating the service- connected disability on appeal. Also advise the veteran 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 percent to as much as 100 percent (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. In addition, provide examples of the types of medical and lay evidence that the veteran may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., 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. 2. Ask the veteran to identify all medical providers who have treated him for right leg problems since July 2007. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. Specifically, VA treatment records since July 2007 should be obtained. 3. Schedule the veteran for a VA examination to determine the severity of his service-connected residuals of a fracture of the right femur. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted, including x-ray, and all symptoms associated with the veteran's service-connected residuals of a fracture of the right femur should be described in detail. Specifically, the examiner should conduct a thorough orthopedic examination of the veteran's residuals of a fracture of the right femur and provide a diagnosis of any pathology found. In examining the residuals of a fracture of the right femur, the examiner should document any limitation of motion (in degrees) of the veteran's right knee and hip, to include providing the point at which painful motion begins. The examiner should also indicate whether there is any guarding on motion and the degrees at which the guarding starts. The examiner should be asked to indicate whether pain or weakness significantly limits functional ability during flare- ups or when the right knee and hip are used repeatedly over a period of time. The examiner should also be asked to determine whether the joint exhibits weakened movement, excess fatigability or incoordination; if feasible, these determinations should be expressed in terms of additional range-of-motion loss due to any weakened movement, excess fatigability or incoordination. If it is not feasible to express any functional impairment caused by pain, weakened movement, excess fatigability or incoordination, found in terms of additional range-of motion loss, the examiner should so state. 4. Thereafter, readjudicate the claim for entitlement to an initial higher (compensable) rating for residuals of a fracture of the right femur. If any benefit sought on appeal remains denied, issue a supplemental statement of the case to the veteran and his representative, and provide an opportunity to respond before the case is returned to the Board. The purposes of this remand are to ensure notice is complete, and to assist the veteran with the development of his claim. 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). (CONTINUED ON NEXT PAGE) No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs