Citation Nr: 0811006 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-35 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for residuals of right knee derangement, right tibial plateau fracture. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Clifford R. Olson, Counsel INTRODUCTION The veteran served on active duty from May 1979 to June 1982, with periods of active duty for training including those in August 1997 and January 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In March 2007, the RO adjudicated other issues. A timely notice of disagreement with that decision is not of record, so the Board does not have appellate jurisdiction of those issues. The veteran has testified that she is unemployed due to her service-connected knee disability. A claim for a total disability rating based on individual unemployability has not been adjudicated by the RO. The matter is referred to the RO for appropriate action. 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 This case arises from an initial claim for service connection, received in June 2004. In October 2004, the veteran was notified of the evidence needed to substantiate the claim for service connection. The service connection claim was substantiated and a March 2005 RO decision granted service connection, rating the disability at 100 percent from February 2004 and at 10 percent from April 2004, under diagnostic codes 5003 (degenerative arthritis) and 5257 (other knee impairment). The veteran submitted a timely notice of disagreement, and in September 2005, a statement of the case was issued, containing the rating criteria for diagnostic codes 5010 (traumatic arthritis) and 5257. The veteran's substantive appeal was received in October 2005 and she testified before a decision review officer (DRO) at the RO in March 2006. In a December 2006 DRO decision the rating was increased to 30 percent, under diagnostic codes 5003, 5257, from April 2004. A supplemental statement of the case (SSOC), of the same date, gave the veteran the criteria for diagnostic code 5262. That code provides knee ratings up to 30 percent based on malunion and knee disability, with a higher rating, 40 percent available for a nonunion, with loose motion, requiring a brace. The veteran was examined in January 2007. Another notice letter was sent in May 2007. There was no further readjudication of the claim after the veteran was provided the Code 5262 criteria in the December 2006 SSOC. In addition to diagnostic code 5262, ratings in excess of 30 percent can be had under diagnostic code 5255 (covering knee disability due to impairment of the femur), diagnostic code 5256 (covering ankylosis), and diagnostic code 5261 (for limitation of extension). Code 5261 is particularly significant in this case because the evidence repeatedly shows a loss of extension. Nevertheless, the veteran has not been notified as to any of these rating criteria. The United States Court of Appeals for Veterans Claims (Court) has recently held that the statute (38 U.S.C.A. § 5103) requires the agency of original jurisdiction (AOJ) to notify the veteran of the rating criteria that would substantiate her claim. See Vazquez-Flores v. Peake, No. 05- 0355, slip op. at 9 (U.S. Vet. App. January 30, 2008). The Court held that VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation," such as a SSOC. Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a appropriate notice letter followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). As noted above, in this case, the veteran was given the questionably applicable rating criteria for nonunion, but there was no subsequent readjudication. Thus, the notice defect was not cured. Under these circumstances, the law requires that the veteran be sent an appropriate notice letter to cure the notice defect, followed by readjudication of her claim. Accordingly, the case is REMANDED to the AMC for the following action: 1. The AMC must review the claims file and ensure that all notice obligations have been satisfied in accordance with the recent court decisions, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), and any other applicable legal precedent. Specifically, the veteran should be provided with the rating criteria for diagnostic codes 5255, 5256, 5261, and 5262, in accordance with the ruling in Vazquez-Flores. 2. After allowing an appropriate time for response to the notice letter, the AMC should readjudicate the claim. If the decision remains adverse to the veteran, she should be sent a SSOC and afforded an appropriate period of time should be allowed for response. Subsequently, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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). _________________________________________________ J. A. MARKEY 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).